Opinion
G053780
05-01-2018
ELDON E. BLASCO, Plaintiff and Appellant, v. BAHRAM DADVAR et al., Defendants and Appellants.
Law Offices of Lee E. Burrows, Lee E. Burrows and Lilya Dishchayan for Defendants and Appellants. Blasco & Hawekotte General Counsel Services and Richard E. Blasco for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00654199) OPINION Appeals from a judgment of the Superior Court of Orange County, John C. Gastelum, Judge. Affirmed. Law Offices of Lee E. Burrows, Lee E. Burrows and Lilya Dishchayan for Defendants and Appellants. Blasco & Hawekotte General Counsel Services and Richard E. Blasco for Plaintiff and Appellant.
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INTRODUCTION
Eldon E. Blasco filed a lawsuit against Bahram Dadvar and Quicken Mortgage Corporation (Quicken) that asserted, among other things, a cause of action for breach of a fixed fee agreement and a separate cause of action for breach of a variable fee agreement. Following a bench trial, the trial court issued a lengthy statement of decision in which the court found that Blasco had met his burden of proving breach of the fixed fee agreement and awarded him $100,000. The court found that Blasco had not met his burden of proving breach of the variable fee agreement and awarded him nothing on that cause of action.
Dadvar and Quicken appealed from the judgment. They contend the trial court erred by awarding Blasco $100,000 because he had engaged in conduct for which a real estate broker's or salesperson's license was required. As Blasco was not duly licensed, Dadvar and Quicken argue he engaged in unlawful activity for which he could not recover.
Blasco also appealed from the judgment. He contends the trial court erred by not awarding him anything on the cause of action for breach of the variable fee agreement because he had sold Dadvar and Quicken a "project" and did not engage in any services for which a real estate broker's or salesperson's license was required.
Both sides argue at length that the trial court misapplied the doctrine of severance set forth in Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974 (Marathon) and GreenLake Capital, LLC v. Bingo Investments, LLC (2010) 185 Cal.App.4th 731, 738 (GreenLake).
The judgment is correct and we therefore affirm it. Central to these appeals is the trial court's statement of decision. Cutting through the parties' expansive arguments, and setting aside the issue of severance, we conclude the judgment is supported by several key findings made by the trial court in the statement of decision. Those findings are supported by substantial evidence and are legally sound. The trial court's severability analysis, when viewed in light of the findings, was unnecessary. Alternatively, we conclude the trial court, in undertaking the severability analysis, found that Blasco's conduct under the fixed fee agreement for which a real estate broker's or salesperson's license was required was to be compensated by the variable fee agreement, and therefore, as to the fixed fee agreement, Blasco was entitled to the full $100,000.
FACTS
Blasco, a licensed general contractor, had constructed or renovated luxury residential properties for over 30 years. He has never held a real estate broker's license or a real estate salesperson's license.
In 2012, Blasco found a large residence in the San Juan Capistrano area that he believed would be a good candidate for renovation. The property was owned by Albert and Lois Grasso. They had listed the property for sale for several years without success and had reduced the listing price from $7.9 million to $5 million.
Blasco believed the improvements on the property were outdated and required extensive renovation, which would include a change in architectural appearance. He concluded the property was undervalued and could be resold at a substantial profit once the necessary renovations and updates were made. Blasco conceived several renovations plans, which ranged in cost from $800,000 to $1.9 million. He expected to sell the property for $6 million to $8 million once renovations were completed.
During the summer of 2012, Blasco started looking for joint venture partners for the renovation and re-sale of the property. His proposal was that the investor would purchase the property and Blasco's contracting firm would do the renovation work. Once the renovations were completed and the property sold, the profits would be split 60/40 between the investor and Blasco. Blasco prepared a package of materials (the prospectus) to use in marketing the joint venture. The prospectus consisted of Blasco's drawing of what the home on the property would look like after renovations, the MLS listing for the property, a letter from Blasco setting forth the scope of the proposed renovations, and a cost estimate ledger setting forth the estimated costs of renovation.
At some point in 2012, Blasco spoke with Albert Grasso, who gave Blasco authorization to show the property to prospective investors. Grasso only wanted to communicate with Blasco regarding any prospective investor purchasers and would deal only with Blasco as a middleman.
At a New Year's Eve party on December 31, 2012, Blasco discussed his joint venture proposal with Dadvar. Later, Dadvar contacted Blasco and scheduled a tour of the property for January 5, 2013. Blasco met with Dadvar at the property as scheduled. Dadvar came with Sirous Razipour, whom Dadvar introduced as his "partner." Blasco, Dadvar, and Razipour inspected the property for 90 minutes to two hours. During the inspection, they encountered Grasso, who did not live on the property, but was there to show it to other prospective buyers. Blasco introduced Dadvar and Razipour to Grasso; the encounter lasted 10 to 15 seconds. During the inspection on January 5, Blasco gave Dadvar a copy of the prospectus.
After the inspection, Blasco, Dadvar, and Razipour discussed the proposal over lunch. Dadvar said he did not want to do a joint venture with Blasco and instead suggested purchasing the property himself and paying Blasco a referral fee. Dadvar proposed paying Blasco a $100,000 referral fee for an introduction to Albert Grasso. Blasco declined the offer because "[i]t was just too little of an amount for such a large project."
At this point, Dadvar and Razipour conferred privately. Razipour then offered to pay Blasco, in addition to the fixed $100,000 fee, a variable fee of 50 percent of the difference between $3 million and the actual purchase price if lower than that amount "'as a reward for negotiating a good deal.'" Blasco accepted the offer with the understanding "I would receive a hundred-thousand dollar fixed referral agreement and that I would receive 50 percent of anything that they would purchase . . . the house for under 3 million dollars."
Blasco requested that the offer be placed in writing. Dadvar hand wrote a summary (which he called "the outline of the deal") of the terms of the parties' agreement reached at the lunch meeting. The summary of terms was received in evidence as exhibit 4. In the handwritten summary, the purchase price of the property for purposes of calculating the variable fee was changed from $3 million to $2.9 million to account for the fixed $100,000 fee, the Grassos were to carry back $1 million in seller financing, $1.8 million was to be paid in cash, and $200,000 would be paid by means of an in-kind transfer of a Bentley automobile.
In the handwritten summary, Dadvar wrote, "Buyer to pay 100K commission to Eld[o]n [Blasco]" and "anything [under] 3,000,000 will split with Eld[o]n [Blasco] 50/50." Dadvar, but not Blasco or Razipour, signed the handwritten summary.
Blasco orally conveyed Dadvar's offer (the general terms of which were set forth in Exhibit 4) to the Grassos by telephone. The Grassos advised Blasco they did not want to carry back a note and instead wanted an all-cash deal. Blasco relayed the Grassos' rejection to Dadvar.
Blasco worked with Dadvar in preparing a written offer, which Blasco delivered to the Grassos on January 8, 2013. The Grassos rejected this offer too. Blasco informed Dadvar of the reasons given by the Grassos for rejecting the offer. Blasco told Dadvar the Grassos were "anxious" to sell, other people were looking at the property, and "we need to make this deal look clean." Blasco advised Dadvar to make a "straight," all cash offer with no contingencies and to ask for a "quick close."
On January 16, 2013, Blasco prepared and signed a document entitled "Referral Fee Agreement" stating: "In consideration of the referral to Al Grasso, owner of the property located at 31645 Peppertree Bend, San Juan Capistrano, CA, Buyer agrees to compensate Eldon E. Blasco a $100,000.00 fee. The fee shall be payable upon recordation of deed or other evidence of property transfer." Dadvar, as buyer, signed the Referral Fee Agreement on January 20, 2013.
Blasco testified the payment of the $100,000 identified in the signed Referral Fee Agreement was just for introducing Dadvar to Albert Grasso and the property. Blasco characterized the $100,000 as a "finder's fee." Blasco made a conscious decision not to include the variable fee in the Referral Fee Agreement.
On January 19, 2013, Blasco delivered to the Grassos a second written offer from Dadvar to purchase the property for $2.575 million. The Grassos accepted the offer, and Blasco delivered the executed offer to Dadvar. Blasco formally introduced Dadvar to Albert Grasso on January 20, 2013.
Escrow was opened based on the January 19, 2013 purchase agreement. However, the Grassos and Dadvar entered into another purchase agreement, for $2.825 million, on January 24, 2013. This second agreement was a fiction designed to satisfy the lender, which would only agree to fund 60 percent of the purchase price. The $250,000 increase in price was intended to cover Blasco's $100,000 fixed fee and a $150,000 payment to Sabrina Thornbury (who lives with Dadvar) as "commission." The fee and commission would not be paid directly out of escrow to Blasco and Thornbury at closing but would be paid outside of escrow by Dadvar. Before the close of escrow, the Grassos agreed, at Dadvar's urging, to a price reduction of $180,000.
While escrow was pending, Blasco forwarded a termite report to Dadvar. Blasco dissuaded Dadvar from ordering more inspection reports on the property. Dadvar relied on Blasco's advice and did not order more inspections of the property.
Escrow closed on February 6, 2013. The $250,000 paid into escrow by Dadvar was paid out of escrow to Thornbury. The sum of $2,563,303 was paid to the Grassos from escrow. At the time of trial, title to the property was held by Quicken and Matasco Enterprises. No portion of either the fixed fee or variable fee was ever paid to Blasco.
PROCEDURAL HISTORY
Blasco filed a verified complaint and later a verified first amended complaint against Dadvar, Quicken, Razipour, Matasco Enterprises, and others. Against Dadvar and Quicken, the first amended complaint asserted causes of action for breach of contract based on the fixed referral fee agreement, breach of contract cause of action based on a "variable referral fee agreement," fraud, promissory fraud, and (except for Dadvar) conspiracy to intentionally interfere with contracts. Dadvar and Quicken filed an answer and a cross-complaint against Blasco for breach of fiduciary duty, intentional misrepresentation, negligent misrepresentation, and constructive fraud.
A bench trial was conducted over five days in April 2015. Closing arguments were presented by briefs.
The trial court awarded Blasco $100,000 on his cause of action for "Breach of Contract - Fixed Referral Fee," awarded judgment in favor of all defendants on Blasco's cause of action for "Breach of Contract - Variable Referral Fee," and awarded judgment in favor of Blasco on the cross-complaint. In the statement of decision, the trial court summarized the lawsuit as follows: "Plaintiff [Blasco] seeks to recover on two separate referral or alleged 'finder's fee' agreements regarding a residential property . . . . Cross-[complainants] allege[] Blasco crossed the line and engaged in conduct requiring a real estate broker's license, and in so doing violated his duty to disclose the true condition of the property, harming cross-complainants."
After reciting the facts in some detail in the statement of decision, the trial court made its rulings and explained its reasoning. The court found that Blasco "has carried his burden of proof to show each of the elements necessary to establish his cause of action for breach of the fixed [fee] referral agreement, but not the variable [fee] referral agreement."
The court noted that Business and Professions Code section 10136, which prohibits acting in the capacity of a real estate broker or salesperson without a license, "poses a problem for both fee agreements." The court stated: "Exhibit 4 states Blasco is to receive a 'commission' in the amount of $100,000. Although Blasco describes this sum as a finder's fee, defense expert [Robert M.] Koop characterized this payment as a 'commission.' Moreover the variable agreement—the 50/50 split of the difference between the actual sale price and the sum of $2,900,000—depends entirely on Blasco's active efforts to negotiate a lower sale price with the seller. This is not the work of a 'finder' or 'middleman.'"
The trial court found that Blasco had engaged in activities for which a license is required by Business and Professions Code section 10136 and that Blasco had neither a real estate broker's license nor a real estate salesperson's license. The court recited the evidence supporting that finding and concluded: "In sum, the evidence reveals Blasco did far more here than simply put these parties together. Blasco served as gatekeeper for all communications with the Grassos. He played a part in influencing the purchase price, advised the parties as to proposed revisions, and persuaded Mr. Grasso to accept a used luxury car as part of the down payment, well after any 'introduction' was complete. Such conduct precludes the applicability of the 'finder's exception' here as to the two agreements referenced in Blasco's complaint."
Yet, the court went on to engage in a severability analysis. The court quoted from GreenLake, supra, 185 Cal.App.4th at page 738: "'Courts are to look at the various purposes of the contract. If the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced. If the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate.'"
On the issue of severability, the trial court found: "Applying these principles, the Court finds not all the services provided under the fixed fee agreement were dependent upon or inextricably intertwined to the acts for which a real estate broker license was required. Viewed in context, the fixed fee agreement between Dadvar and Blasco did not have as its central purpose the provision of illegal services. Pursuant to this agreement, Blasco was to introduce Dadvar to the Grassos so they could negotiate a sale of the property. Such conduct would legally entitle Blasco to a finder's fee for such an introduction/involvement. Blasco did, in fact, provide that introduction. Defendants received the benefit of the bargain, i.e., the introduction. The evidence is also clear that Mr. Grasso would not have dealt with Defendants absent Blasco's introduction. Enforcing this portion of the contract would prevent Dadvar/Quicken from gaining an undeserved benefit, i.e., escaping payment of the agreed upon finder's fee. Nor would this approach condone any illegal activity. The Court also notes Blasco testified Dadvar had always acknowledged the $100,000 finder's fee payment was due, but attempted to negotiate a 'discount' once the deal was complete. On a related point, the Court finds Blasco's 'introduction' of Grasso to defendants during the 1-5-13 tour could only be described as a 'casual' encounter, at best. By no means was this the 'introduction' of a prospective buyer to a seller contemplated by the parties in this case. Accordingly, the subsequent 'introduction' of prospective buyer to seller was sufficient consideration to support the agreement."
The trial court found that no credible evidence was presented at trial to support Blasco's contention that he had sold Dadvar a "project" and that "[b]oth of the agreements at issue here involved a finder's fee only." The trial court found the evidence at trial did not support any of the causes of action asserted in the cross-complaint.
A judgment was entered awarding Blasco $100,000 (plus prejudgment interest) on his cause of action for "Breach of Contract - Fixed Referral Fee" against Dadvar and Quicken. The judgment was in favor of all defendants on Blasco's cause of action for "Breach of Contract - Variable Referral Fee" and in favor of Blasco on the cross-complaint. Dadvar and Quicken appealed from the judgment, as did Blasco.
DISCUSSION
I.
Summary of the Parties' Arguments
Dadvar and Quicken's appeal and Blasco's appeal are flip sides of the same coin: Dadvar and Quicken argue the trial court erred by awarding Blasco the full $100,000 fixed fee, while Blasco argues the trial court erred by not awarding him the variable fee in addition to the fixed fee. Both appeals require us to address the same issues, evidence, legal principles, and statement of decision, and therefore we shall consider the appeals together.
The briefs in this matter are sprawling. The parties' respective arguments can be summarized as follows:
Dadvar and Quicken contend the trial court erred by finding the $100,000 fixed fee agreement did not have as its central purpose the provision of illegal services. The trial court found that Blasco engaged in activities for which a real estate broker or real estate salesperson license was required. The trial court therefore should have subtracted from the $100,000 the amount intended as compensation for services performed by Blasco that were unlawful. Having found that Blasco engaged in unlawful conduct, the trial court misapplied the rule of severability to the fixed fee agreement by concluding, in effect, the entire $100,000 was a permissible finder's fee, for which a license was not required. According to Dadvar, the entire $100,000 fee was a commission for engaging in real estate broker or salesperson services, and, because Blasco did not have a license, he should have recovered nothing.
Blasco contends the trial court erred by finding there were two separate agreements—a variable fee agreement and a fixed fee agreement. According to Blasco, there was a single agreement, and that agreement was only for the sale of a renovation project, not for the rendition of services. To the extent Blasco performed any "middleman" services in the transaction, those services were gratuitous, were performed in connection with an agreement with the Grassos, or were not consideration for the single agreement for sale of the renovation project. Thus, Blasco argues, he was entitled to recover the full amount of the variable fee ($252,000) and the full amount of the fixed fee ($100,000). Alternatively, Blasco argues the trial court misapplied the rule of severability. He contends the trial court should have calculated the total value of services performed by Blasco for which a license was required, and subtracted that amount from the total compensation under the single contract for sale of the project.
II.
Standards of Review
Both appeals can be resolved by reference to the standards of review as applied to some key findings and conclusions made by the trial court in the statement of decision.
Several standards of review are relevant here. We start with the basic principle that a judgment is presumed correct on appeal, and "all intendments and presumptions are indulged in favor of correctness." (In re Marriage of Arcenaux (1990) 51 Cal.3d 1130, 1133.)
Another basic principle is that we review the correctness of the judgment. Even if the trial court misunderstood or misapplied the law, the judgment must be affirmed if it is supported by any correct legal theory. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981; Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 237.) "[A]n appellate court reviews the action of the lower court and not the reasons given for its action; and . . . there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct." (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610.)
"In reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo. [Citation.] We apply a substantial evidence standard of review to the trial court's findings of fact. [Citation.] Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings." (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981; see Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-60.)
Under the substantial evidence standard, we examine the entire record in the light most favorable to the judgment to determine whether there is evidence that is reasonable, credible, and of solid value to support the judgment. (Ferguson v. Yaspan (2014) 233 Cal.App.4th 676, 682.) In undertaking that task, we resolve all conflicts in the evidence in favor of the judgment, we do not reweigh the evidence, and we are bound by the trial court's credibility determinations. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613.) The testimony of a single witness may constitute substantial evidence. (Ibid.) The test is whether the record contains substantial evidence in favor of the respondent, and "[i]f this 'substantial' evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
A mixed question of law and fact involves "the application of the rule to the facts and the consequent determination whether the rule is satisfied." (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.) "'In deciding a mixed question, the trial court must: (1) establish the historical facts; (2) select the applicable law; and (3) apply the law to the facts.' [Citation.] The findings of historical fact are reviewed for substantial evidence, and the selection of the applicable law (the legal issues) is reviewed de novo. The next step is applying the law to the facts. If application of the law to the facts is primarily factual in nature, the deferential substantial evidence standard applies; if application of the law to the facts is primarily legal in nature, the de novo standard applies." (Apex LLC v. Sharing World, Inc. (2012) 206 Cal.App.4th 999, 1009.)
The standard of review specific to contract interpretation is as follows: "When no extrinsic evidence is introduced, or when the competent extrinsic evidence is not in conflict, the appellate court independently construes the contract. [Citations.] When the competent extrinsic evidence is in conflict, and thus requires resolution of credibility issues, any reasonable construction will be upheld if it is supported by substantial evidence." (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 955-956.)
III.
The Trial Court's Findings Support the Judgment.
A. Significant Findings Made by the Trial Court in the
Statement of Decision
Putting aside for the moment the trial court's severability analysis, the statement of decision can be distilled into seven fundamental findings and conclusions supporting the judgment. They are:
1. Blasco sought to recover on two separate agreements: The fixed fee agreement and the variable fee agreement.
2. There was no credible evidence that Blasco sold Dadvar "any sort of 'project' involving the renovation of the property."
3. Blasco engaged in activities for which a real estate broker's or real estate salesperson's license was required. Blasco is not a licensed real estate broker or salesperson.
4. The fixed fee agreement did not have as its central purpose the provision of illegal services. The purpose of the fixed fee agreement was for Blasco to refer Dadvar to the Grassos, and such conduct would entitle Blasco to a finder's fee.
5. Blasco performed as required under the fixed fee agreement.
6. The variable fee agreement depended entirely on Blasco's efforts to negotiate a lower sale price for the property.
7. Blasco met his burden of proof on the first cause of action for breach of the fixed fee agreement and did not meet his burden of proof under the second cause of action for breach of the variable fee agreement.
The issue we turn to in the next subsection is whether those findings are supported by the substantial evidence and legally sufficient.
B. The Significant Findings Made by the Trial Court Are
Supported by Substantial Evidence and the Law and Fully
Support the Judgment.
1. Blasco sought to recover on two separate agreements: The fixed fee agreement and the variable fee agreement.
Blasco throughout his appellate briefs repeatedly argues the trial court erred by finding two separate agreements rather than a single agreement between him and Dadvar. If the trial court erred by finding there were two agreements, the error was invited by Blasco. "The invited error doctrine is an application of the estoppel principle that where a party by his or her conduct induces the commission of error, he or she is estopped from asserting it as a ground for reversal on appeal." (Pioneer Construction, Inc. v. Global Investment Corp. (2011) 202 Cal.App.4th 161, 169.) The purpose of the invited error doctrine is to "prevent a party from misleading the trial court and then profiting therefrom in the appellate court." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.)
Blasco pleaded two separate breach of contract causes of action, one based on the fixed fee agreement and the other based on the variable fee agreement. His theory at trial was there were two separate agreements. Blasco argued in his closing brief that he had entered into two contracts with Dadvar and Razipour "the $100,000 fixed referral fee contract and the $252,500 variable referral fee contract," that "[Blasco] has more than met his burden of proof to show that the two contracts were entered into by these Defendants," and that "[t]he above facts clearly show that two contracts were entered into by [Blasco] and Defendants Dadvar and Razipour." Blasco cannot complain on appeal that the trial court accepted his arguments. 2. There was no credible evidence that Blasco sold Dadvar "any sort of 'project' involving the property."
The evidence at trial did not support Blasco's theory that the purpose of the contract or contracts was to sell Dadvar a renovation "project." Dadvar declined Blasco's joint venture proposal for a project. Blasco gave Dadvar a copy of the prospectus when Dadvar was considering the joint venture proposal, but there is no evidence the prospectus or any of the information contained in it was consideration for either the fixed fee agreement or variable fee agreement.
The evidence showed, and the trial court found, the consideration for the two agreements was that Blasco would refer Dadvar to the Grassos and that Blasco would negotiate a price and perform other services for which a license was required. None of the consideration was the conveyance or transfer of property, plans, or concepts. The concept of buying undervalued property, renovating it, and reselling it at a profit was not unique to or owned by Blasco and he therefore could not have entered into a contract to sell such a concept to Dadvar. 3. Blasco engaged in activities for which a real estate broker's or salesperson's license was required. Blasco is not a licensed real estate broker or salesperson.
Business and Profession Code section 10136 states: "No person engaged in the business or acting in the capacity of a real estate broker or a real estate salesperson within this state shall bring or maintain any action in the courts of this state for the collection of compensation for the performance of any of the acts mentioned in this article without alleging and proving that he or she was a duly licensed real estate broker or real estate salesperson at the time the alleged cause of action arose." It was undisputed that Blasco was not duly licensed as either a real estate broker or as a real estate salesperson.
Whether Blasco engaged in activities for which a real estate broker's or salesperson's license was required is a mixed question of fact and law. First, we establish the historical facts. (Apex LLC v. Sharing World, Inc., supra, 206 Cal.App.4th at p. 1009.) The trial court's findings about what Blasco did in connection with the sale transaction—the historical facts—are supported by substantial evidence.
The evidence showed that at the January 5, 2013, meeting, Dadvar offered to pay Blasco the variable fee as a reward for negotiating a good deal. Blasco relayed offers and rejections back-and-forth between Dadvar and the Grassos, directly negotiated the purchase price, worked with Dadvar in preparing the January 8, 2013 offer, advised Dadvar on formulating an all-cash offer, forwarded a termite report to Dadvar and dissuaded him from ordering a new one, and was instrumental in persuading the Grassos to accept the Bentley as part of the purchase price. From January 9 through January 16, 2013, Blasco had 82 telephone contacts with Dadvar and Albert Grasso. From January 20 through February 6, 2013 (the date escrow closed), Blasco had 243 telephone contacts with Dadvar and Albert Grasso. At trial, defendants presented a real estate expert witness, Robert M. Koop, who testified that Blasco involved himself in in the parties' negotiations for the purchase of the property. Koop testified that Blasco did not act merely as a finder.
As the trial court noted, the amount of the variable fee depended on Blasco's success in negotiating a favorable deal for Dadvar: The lower the purchase price negotiated by Blasco, the higher the amount of the variable fee.
The applicable law is Business and Professions Code section 10131, which defines a real estate broker as one who, among other things, "[s]ells or offers to sell, buys or offers to buy, solicits prospective sellers or purchasers of, . . . or solicits or negotiates the purchase, sale or exchange of real property or a business opportunity." (Bus. Prof. Code, § 10131, subd. (a).) A real estate salesperson is a natural person who for compensation is employed by a real estate broker to do one or more of the acts of a real estate broker. (Id., § 10132.)
Application of section 10131 to the historical facts of this case is primarily factual in nature and therefore the substantial evidence rule governs. (Apex LLC v. Sharing World, Inc., supra, 206 Cal.App.4th at p. 1009.) Substantial evidence supported the finding that Blasco engaged in activities for which a real estate broker's license or real estate salesperson's license was required. The evidence showed that he "negotiate[d] the purchase, sale or exchange of real property" on behalf of Dadvar.
Blasco argues that whatever real estate broker services he engaged in were entirely on behalf of the Grassos; as to Dadvar, Blasco argues the only service he provided was introducing Dadvar to Albert Grasso. The evidence supports the finding that Blasco engaged in broker services for Dadvar. In particular, Blasco advised Dadvar to make an all-cash offer, assisted Dadvar in preparing written offers, and negotiated price with the Grassos on Dadvar's behalf. The variable fee agreement fixes compensation based on Blasco's ability to obtain a low purchase price for Dadvar. 4. The fixed fee agreement did not have as its central purpose the provision of illegal services. The purpose of the fixed fee agreement was for Blasco to refer Dadvar to the Grassos, and such conduct entitled Blasco to a finder's fee.
"Historically, the only exception to the statutory bar to recovering fees for unlicensed brokerage activities concerned those 'who simply find[] and introduce[] two parties to a real estate transaction . . . . Such an intermediary or middleman is protected by the finder's exception to the real estate licensing laws . . . .' [Citation.] Under the finder's exception a person who simply finds and introduces prospective parties to a real estate transaction may obtain a commission for his or her services without a real estate license. The fee is forfeited, however, if he or she has played any role in negotiating the transaction, no matter how slight." (GreenLake, supra, 185 Cal.App.4th at p. 736.)
Substantial evidence supported the trial court's finding that the purpose of the fixed fee agreement was for Blasco to refer Dadvar to the Grassos. Blasco testified that at the lunch meeting on January 5, 2013, Dadvar said he did not want to do a joint venture and proposed paying Blasco a referral fee of $100,000 for a referral to the Grassos. After Blasco declined that offer, Dadvar offered to pay Blasco the fixed $100,000 fee and, in addition, a variable fee for negotiating a good deal. In the summary of the deal points, Dadvar wrote "Buyer to pay 100K commission to [Blasco]." Blasco testified the $100,000 fixed fee was for introducing Dadvar to Albert Grasso and the property, and characterized the fee as a "finder's fee." The fixed fee agreement, signed by Blasco and Dadvar, states "[i]n consideration of the referral to Al Grasso, . . . Buyer agrees to compensate Eldon E. Blasco a $100,000 fee." This evidence amply supports the trial court's finding that the central purpose of the fixed fee agreement was to compensate Blasco for referring Dadvar to the Grassos.
Use of the word "commission" does not indicate the $100,000 fee was meant as compensation for real estate brokerage services. (See GreenLake, supra, 185 Cal.App.4th at p. 736.)
Dadvar and Quicken argue the fixed $100,000 fee could not serve as consideration for referring him to the Grassos because Dadvar was introduced to Albert Grasso on January 5, 2013, before the lunch meeting, and the sale transaction had been negotiated before the Referral Fee Agreement was signed. The introduction on January 5 was brief, casual, and a matter of happenstance. The Referral Fee Agreement was a memorialization of the agreement reached at the lunch meeting on January 5. Further, the consideration for the fixed fee agreement was not a bare introduction of Dadvar to the Grassos, but finding the property for Dadvar and referring him to the Grassos. 5. Blasco performed as required under the fixed fee agreement.
Substantial evidence supported the trial court's finding that Blasco performed as required under the fixed fee agreement. The evidence at trial established that Blasco found the property, informed Dadvar about it, and referred Dadvar to the Grassos. No more was required of Blasco. 6. The variable fee agreement depended entirely on Blasco's efforts to negotiate a lower sale price for the property.
This is a mixed question of law and fact. The variable fee agreement, as memorialized in Dadvar's handwritten notes and explicated by trial testimony, was that Blasco would receive as compensation 50 percent of the difference between $2.9 million and the actual purchase price for the property if under that amount. For example, if the property sold for $2.5 million, then Blasco would receive $200,000 ($2.9 million - $2.5 million= $400,000 ÷ 2= $200,000).
Interpreting the terms of the variable fee agreement is a legal question of contract interpretation subject to de novo review. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc., supra, 109 Cal.App.4th at pp. 955-956.) The terms of the variable fee agreement created an incentive for Blasco to negotiate a low price for the property because the amount of the variable fee depended on Blasco's efforts and ability to negotiate a low price. The more successful Blasco was in obtaining a lower price for Dadvar, the higher Blasco's compensation would be. Thus, the variable fee agreement is evidence that Blasco engaged in real estate broker services on behalf of Dadvar. Because the variable fee agreement depended entirely on Blasco's efforts to negotiate a lower sale price for the property, the variable fee agreement depended entirely on activities for which a real estate broker's or salesperson's license was required. 7. Blasco met his burden of proof on the first cause of action for breach of the fixed fee agreement and did not meet his burden of proof under the second cause of action for breach of the variable fee agreement.
The trial court's findings on the prior six issues give context to and explain the meaning of the court's findings that Blasco met his burden of proof on the first cause of action for breach of the fixed fee agreement but did not meet his burden of proof under the second cause of action for breach of the variable fee agreement.
Blasco proved the existence of, his performance under, and breach of, the fixed fee agreement. The fixed fee agreement was valid and enforceable, notwithstanding Blasco's lack of a real estate broker or salesperson's license, because it fell within the finder's exception. The sole consideration of the fixed fee agreement was finding the property and introducing Dadvar to the Grassos, tasks for which a real estate broker's or salesperson's license was not required. (GreenLake, supra, 185 Cal.App.4th at p. 736.) Blasco therefore met his burden of proof under the first cause of action.
Blasco did not meet his burden under the second cause of action. As the trial court found, Blasco's compensation under the variable fee agreement depended on his efforts in negotiating a low price, Blasco actively negotiated the transaction on behalf of Dadvar, and Blasco did not have a real estate broker or salesperson's license. Because the consideration for the variable fee agreement consisted entirely of activities for which a real estate broker's or salesperson's license was required, and Blasco did not have such a license, he could not recover under the second cause of action.
Thus, the trial court's findings, liberally construed, and the court's interpretation of the variable fee agreement fully support the judgment awarding Blasco $100,000 for breach of the fixed agreement and nothing for breach of the variable fee agreement.
III.
The Trial Court's Severability Analysis Was Unnecessary.
What can be made of the trial court's severability analysis? Both Dadvar and Blasco contend the trial court misapplied the severability rule set forth in Marathon, supra, 42 Cal.4th 974.
Under the doctrine of severability, codified at Civil Code section 1599, any lawful portion of contract may be severed and enforced if feasible to do so. In Marathon, supra, 42 Cal.4th at page 996, the California Supreme Court explained: "'Courts are to look to the various purposes of the contract. If the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced. If the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate.'"
In GreenLake, supra, 185 Cal.App.4th at page 734, the defendant retained the plaintiff to "assist in identifying and raising financing to support its business activities." (Fn. omitted.) When the defendant declined to pay the agreed-upon commission, the plaintiff sued for breach of contract and unjust enrichment. (Id. at p. 735.) The trial court granted summary judgment in favor of the defendant based on its affirmative defense that the plaintiff was not a licensed real estate broker and had engaged in conduct for which a license was required. (Ibid.) Based on the severability doctrine, the Court of Appeal reversed on the ground there was a disputed issue of material fact as to whether the plaintiff had engaged in any activity for which a real estate broker's license was required and, if so, whether the parties' agreement should be enforced to the extent the lawful portions could be severed from the unlawful ones. (Id. at p. 740.) "'If a contract is capable of severance, the decision whether to sever the illegal portions and enforce the remainder is a discretionary decision for the trial court to make based on equitable considerations.'" (Ibid.)
Dadvar and Quicken argue the trial court erred by failing to sever the legal portions from the illegal portions of the fixed fee agreement. Blasco argues there was a single agreement with a fixed fee provision and a variable fee provision, and to the extent any unlawful services were required, the trial court erred by failing to sever the compensation attributable to the lawful services from the compensation attributable to the unlawful services within the single contract.
In light of the trial court's factual findings and its interpretation of the meaning of the fixed fee agreement and the variable fee agreement, the court's severability analysis was unnecessary. The court's factual findings support the conclusion the fixed agreement was a finder's or referral fee agreement falling entirely within the finder's exception, while the variable fee agreement was based entirely on services for which a real estate broker's or salesperson's license was required. Thus, as the trial court found, Blasco met his burden under the first cause of action, for breach of the fixed fee agreement, and did not meet his burden under the second cause of action, for breach of the variable fee agreement. Because the fixed fee agreement was fully enforceable, and the separate variable fee agreement was not, there was no reason to undertake a severability analysis.
Although we cannot ignore the trial court's severability analysis, it is important to understand that we are not reviewing the statement of decision—we are reviewing the judgment. The statement of decision "facilitates" our review of the judgment "by revealing the bases for the trial court's decision." (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 293.) A statement of decision is required only for issues of fact. (See Southern Cal. Gas Co. v. City of Vernon (1995) 41 Cal.App.4th 209, 220-221; City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1291-1292.) From our perspective, the significance of the statement of decision is that it recites factual findings enabling effective appellate review. (Thompson v. Asimos, supra, 6 Cal.App.4th at p. 982.) "'Without a statement of decision, the judgment is effectively insulated from review by the substantial evidence rule,' as we would have no means of ascertaining the trial court's reasoning or determining whether its findings on disputed factual issues support the judgment as a matter of law." (Id. at p. 982.) A statement of decision is sufficient if it "'fairly discloses the court's determination as to the ultimate facts and material issues in the case.'" (Id. at p. 983.)
Whether or not it was necessary for the trial court to undertake a severability analysis, the important point is the court's findings support the judgment. Because the judgment is correct, we affirm it. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981; Carbajal v. CWPSC, Inc., supra, 245 Cal.App.4th at p. 237; Mike Davidov Co. v. Issod, supra, 78 Cal.App.4th at p. 610.)
An alternative explanation is that the trial court, having undertaken a severability analysis of the fixed fee agreement, found that Blasco's activities under that agreement for which a real estate broker's or salesperson's license was required would be compensated under the variable fee agreement. Accordingly, even with severance, Blasco was entitled to recover the entire $100,000 under the fixed fee agreement.
DISPOSITION
The judgment is affirmed. Because all parties prevailed in part, no party may recover costs on appeal.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.