L J Sutter Partners v. Odysseus Farms CA3

Filed 5/21/15 L J Sutter Partners v. Odysseus Farms CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter) ----

L J SUTTER PARTNERS, L.P.,

Plaintiff and Appellant, C074082

v. (Super. Ct. No. CVCS081016)

ODYSSEUS FARMS et al.,

Defendants and Respondents.

This is the third appeal in the continuing saga of litigation over real property owned by Odysseus Farms (Odysseus)1 in South Sutter County. (See South Sutter, LLC v. LJ Sutter Partners, L.P. (South Sutter I) [(C057843) dismissed after the parties notified us of a settlement]; S. Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th

1 LJ Sutter’s second amended complaint was filed against Odysseus Farms, a California general partnership, Elysian Farms, Inc., and Robert Leal, as trustee of the Leal Family Trust. We refer to defendants and respondents collectively as Odysseus.

1

634, 640 (South Sutter II).) This appeal concerns an option held by LJ Sutter Partners L.P. (LJ Sutter) to buy “mitigation” property from Odysseus. Mitigation property refers to real property that developers must acquire and set aside when proceeding to build residential and industrial developments. When the deadline loomed for LJ Sutter to make a large payment to preserve its option, it asked Odysseus for a loan and extension of time to make the option payment. When Odysseus refused, LJ Sutter engaged in a ruse by purporting to exercise the option but while imposing an impossible-to-fulfill condition. Odysseus eventually balked, and LJ Sutter sued for causes of action that included breach of contract, fraudulent inducement, fraudulent concealment, and intentional interference with prospective economic advantage. A trial was conducted by a referee and culminated in a judgment for Odysseus. On appeal, LJ Sutter contends (1) the referee erred by finding LJ Sutter impliedly repudiated the option agreement by imposing the unreasonable condition that Odysseus provide assurances it could convey the mitigation property and (2) any implied repudiation was nullified by Odysseus’s failure to treat the demand for assurances as a breach of contract. LJ Sutter’s arguments focus exclusively on the referee’s implied repudiation ground for rejecting the breach of contract claim. We reject LJ Sutter’s arguments for lack of prejudice. LJ Sutter has not addressed a second ground on which the referee based his decision, namely that LJ Sutter was equitably estopped from demanding assurances when it had argued in the collateral litigation that Odysseus unquestionably had clear title to the mitigation property. Moreover, LJ Sutter fails to discuss a third ground given by the referee for rejecting the breach of contract claim, namely abrogation of the contract by mutual intent of the parties. Thus, even if the contract had not been unilaterally repudiated by LJ Sutter, there are two other grounds for affirming the judgment for Odysseus: (1) LJ Sutter was