Opinion
D051042
6-24-2008
GREGORY T. JOYNER et al., Plaintiffs, Cross-defendants and Respondents, v. KEN YEUNG, Defendant, Cross-complainant and Appellant.
Not to be Published
We affirm the judgment for specific performance and damages entered by the trial court in favor of the purchasers of real property, plaintiffs and respondents Gregory T. Joyner and Marisa A. Joyner, and against defendant and appellant Ken Yeung, the seller. Contrary to Yeungs argument, he may not assert a contractual right of arbitration for the first time following a trial on the merits and entry of a judgment in favor of the Joyners. Moreover, the fact that after the trial he has located a witness who might contradict the testimony of one of the Joyners does not warrant reversal of the trial courts judgment. Finally, the fact the respondents did not avail themselves of the right to specific performance provided for in a judgment does not entitle the appellant to relief from the judgment.
FACTUAL AND PROCEDURAL HISTORY
In February 2004 the Joyners and Ken Yeung executed a purchase agreement with respect to a residence owned by Ken Yeung. The agreement was set forth on a purchase agreement form published by the California Association of Realtors and provided, among other matters, for mediation and arbitration of any dispute between the parties.
Yeung failed to perform the purchase agreement, and the Joyners filed a complaint for specific performance and damages. Yeung answered the complaint and filed a cross-complaint in which he alleged claims for fraud against the Joyners. Yeung alleged that although he had executed the purchase agreement, he never intended to deliver the executed document to the Joyners. According to Yeungs cross-complaint, Gregory Joyner tricked Yeungs elderly mother into permitting him to take the executed agreement from his home.
The case proceeded to trial by the court. The trial court found that in fact the Joyners, who were in the real estate business and intended to buy the residence for investment purposes, used a courier service to pick up the agreement from Yeung and the agreement was enforceable. The trial court relied on testimony from Marisa Joyner with respect to her practice of using courtesy couriers from escrow offices. Although the trial court rejected the Joyners contention they lost tax benefits by virtue of Yeungs failure to perform the agreement, the court did find the Joyners lost $7,380 in rent they could have earned from the property. The trial court entered a judgment which awarded the Joyners specific performance of the purchase agreement and damages for lost rental value. The judgment provided that all obligations under the purchase agreement would commence as of the date of the judgment and that escrow would close within 50 days of the date of the judgment.
Following entry of judgment, Yeung filed motions for a new trial and to vacate the judgment. He argued that because the trial court found the purchase agreement was valid and enforceable, the trial court should have required the parties to mediate and arbitrate their dispute. Yeung also argued testimony from his real estate agent, who was out of the country at the time of trial, would have contradicted the Joyners testimony and in particular Marisa Joyners testimony that she used courier services during the course of the parties transaction. In addition, Yeung argued he received a letter from the Joyners counsel in which counsel notified Yeung that financing was not available for the purchase of the residence and that in any event Yeung failed to disclose the property was subject to monthly homeowners fees; the Joyners therefore advised Yeung they would not be purchasing the residence under the terms of the trial courts judgment. The trial court denied Yeungs posttrial motions, and Yeung filed a timely notice of appeal.
Yeung filed a brief in propria persona, and no brief was filed on behalf of the Joyners.
DISCUSSION
I
Initially, Yeung argues that because the trial court found the purchase agreement was valid and enforceable, the trial court was required to enforce the mediation and arbitration provisions of the agreement. With due respect, we are unable to accept this argument.
In failing to timely assert the mediation and arbitration provisions and instead in permitting the trial court to resolve the merits of the parties contentions, Yeung waived his right to mediation and arbitration. A litigant is not permitted to fully litigate a case and when the result is unfavorable, then seek arbitration. (See Doers v. Golden Gate Bridge, etc., Dist. (1979) 23 Cal.3d 180, 186.) In determining whether a party has waived the right to arbitrate, a court can consider " `(1) whether the partys actions are inconsistent with the right to arbitrate; (2) whether "the litigation machinery has been substantially invoked" and the parties "were well into preparation of a lawsuit" before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) "whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place"; and (6) whether the delay "affected, misled, or prejudiced" the opposing party. [Citations.] " (Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 992.) In this case, where no attempt to either mediate or arbitrate the parties dispute was attempted in the trial court and in fact Yeung filed a cross-complaint seeking affirmative relief from the trial court, each of these factors plainly demonstrates Yeung has waived his right to the alternative dispute resolution mechanisms provided in the purchase agreement.
II
As he did in the trial court Yeung also argues the testimony of Amy Chu was unavailable at the time of trial and that it contradicted Marisa Joyners testimony she used a courier to pick up the purchase agreement. Again, we cannot accept Yeungs argument.
Code of Civil Procedure section 657, subdivision 4, authorizes the grant of a new trial when the moving party has discovered new, material evidence which it could not, with reasonable diligence, have discovered and produced at trial. The moving party must establish (1) the evidence is newly discovered; (2) he or she exercised reasonable diligence in discovering and producing it; and (3) it is material to the moving partys case. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161.)
Here, there is nothing in the record which shows Yeung could not have preserved Chus testimony by way of deposition, and, in light of her unavailability at the time of trial, introduced the deposition testimony at trial. Thus Yeung did not establish that he exercised reasonable diligence in attempting to produce Chus testimony.
III
Finally, Yeung points out that on May 25, 2007, following entry of judgment, the Joyners counsel advised him the Joyners would not be purchasing the residence under the terms of the judgment and purchase agreement because the property did not appraise for the purchase price of $375,000 and no lender was willing to provide financing on the property. The Joyners asserted that under the financing contingencies of the purchase agreement, they were no longer obligated to complete the purchase. The Joyners also relied on the fact that Yeung failed to advise them the residence was subject to homeowners association fees.
The Joyners unwillingness to complete the purchase agreement following entry of the judgment does not require that we disturb the judgment, which as we have noted includes an award of damages. The Joyners inability to obtain financing for the purchase in 2007 does not suggest that in 2004, when Yeung was required to perform his obligations under the purchase agreement, the Joyners would have been unable or unwilling to complete the transaction and realize the rental income awarded by the trial court.
Judgment affirmed.
WE CONCUR:
AARON, J.
IRION, J.