Richardson Investments v. Hajj CA4/2 (2023) · DecisionDepot
Richardson Investments v. Hajj CA4/2
California Court of Appeal Aug 4, 2023 No. E078098Unpublished
Filed 8/4/23 Richardson Investments v. Hajj CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RICHARDSON INVESTMENTS, LLC,
Plaintiff and Respondent, E078098
v. (Super.Ct.No. PSC1806316)
KATIA HAJJ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kira L. Klatchko, Judge.
Affirmed.
JDM and James D. Menke for Defendant and Appellant.
Messina & Hankin and David A. Grabhorn for Plaintiff and Respondent.
Defendant and appellant Katia Hajj (Hajj) contracted to sell a vacant lot in
Palm Springs to plaintiff and respondent Richardson Investments, LLC, (Richardson) for
$110,000. Hajj failed to complete the sale, and Richardson initiated this action seeking,
inter alia, rescission of the contract, return of the deposit, restitution, and damages. The
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case was tried to the court, which found that Hajj “breached the Agreement and that
[Richardson] was entitled to and did rescind the Agreement.” The trial court entered
judgment for Richardson; as the prevailing party, Richardson was awarded costs and
On appeal, Hajj challenges the sufficiency of evidence to support the judgment.
She further contends the trial court erred in failing to make several findings as to
specified issues of material fact and in awarding attorney fees in the amount of
$165,637.50. We affirm.
I. PROCEDURAL BACKGROUND AND FACTS
On June 26, 2018, Richardson and Hajj entered into a valid contract for
Richardson’s purchase of Hajj’s vacant lot in Palm Springs for $110,000 cash, with
$10,000 deposited into escrow (the agreement). Richardson intended to commercially
develop the land in conjunction with its adjacent lot already acquired for that purpose.
The agreement and escrow instructions provided for the close of escrow on August 13,
2018, when the escrow holder had obtained title insurance. When the insurance was not
obtained by August 13, Hajj considered the agreement null and void. On September 12,
the insurance was arranged; however, Hajj refused to execute the remaining documents
necessary to close escrow and repudiated all contractual obligations. On September 27,
Richardson served Hajj with a formal notice to seller to perform; Hajj refused.
On October 16, 2018, Richardson initiated this action (initially seeking specific
performance) and recorded a lis pendens on the property. Richardson attempted
mediation (as required by the contract) and arbitration; Hajj refused. After more than a
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year of litigation, and after Richardson’s business purpose for joint development of the
two lots was completely frustrated due to the death of Charles Richardson1 (Charles aka
Chick), Richardson filed the operative second amended complaint changing its election
of remedies from specific performance to rescission and restitution.
A. The Evidence.
A three-day bench trial was conducted virtually in June 2021. There were four
witnesses: Elicia Richardson-Ellis (Charles’s daughter and heir; Elicia); Hajj; Melvena
Schaefer (the escrow officer; Schaefer); and Antoine Abi-Abdallah (Hajj’s spouse; Abi-
Abdallah).2
1. Elicia’s testimony.
Elicia is Charles’s daughter and heir. She is the president, secretary, and sole
manager of Richardson, a Texas limited liability company. Between 2015 and December
16, 2019, Richardson was owned by the Charles C. Richardson Revocable Trust (the
trust). Elicia is also the president, secretary, and sole manager of CRE, LLC, a Texas
limited liability company (CRE), another company owned by the trust.
Richardson obtained its operating funds from the trust’s account. From August 13
through October 19, 2018, Charles would determine the amount of money to transfer
from the trust to Richardson. He had the sole discretion to do so. For the money needed
1 We refer to the Richardson family members by their first names to avoid confusion. We mean no disrespect in doing so. (Estate of O’Connor (2018) 26 Cal.App.5th 871, 875, fn. 2.)
2 Hajj’s husband also used the name “Tony.”
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to purchase Hajj’s property, Charles planned to take it from the trust, which had sufficient
funds. During August 2018, the total amount of cash assets available in the trust was at
least $1,026,083.68. On August 6, 2018, Charles transferred $100,000 from the trust to
CRE. As of September 12, 2018, the trust’s total amount of cash assets was
approximately $2,189,179.71. In October 2018, the trust’s total amount of cash assets
was $2,278,110.88.
2. Hajj’s testimony.
Hajj’s personal representative was her spouse, Abi-Abdallah, who acted on her
authority and communicated directly with the real estate agent (James Stuart)3 and the
escrow officer. Escrow did not close on August 13, 2018, because title insurance had not
been secured. Upon securing title insurance, on September 17, 2018, escrow sent
documents to Hajj for her signature. She knew that she needed to execute these
documents to close escrow, but she refused to do so because (1) the interspousal transfer
grant deed incorrectly identified her husband’s name as Tony Hajj, and (2) she, through
her husband, declared that Richardson was in breach and the contract was “null and
void.”
According to the agreement, neither party could cancel the contract without first
demanding that the other party close escrow. Between August 13 and October 16, 2018,
Hajj never made such demand nor provided written notice of cancellation. On September
27, Richardson served her with a written demand to close escrow. She failed to do so,
3 Mr. Stewart represented both Hajj and Richardson.
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and Richardson served her with the complaint and notice of lis pendens. Hajj never told
her husband to contact the escrow officer to complete the sale.
3. Schaefer’s testimony.
Schaefer, president and senior escrow officer at Liberty Escrow, was in charge of
the escrow for the sale of Hajj’s property to Richardson. Escrow opened on June 27,
2018, and Schaefer opened a preliminary title report with Orange Coast Title Company
(OCT) with instructions to order title insurance at the closing; she could not close escrow
without a policy of title insurance. Schaefer also prepared a grant deed identifying the
seller as “Katia Hajj, a married woman,” and sent it to OCT on July 23, 2018.
For title insurance, the underwriter demanded copies of public records concerning
the tax sale from which Hajj acquired the property. On August 2, 2018, Schaefer
requested these records from Riverside County’s Office of the Treasurer-Tax Collector tax
sales department, but OCT did not receive them until September 6. The first day that
OCT informed Schaefer that it would provide a title insurance policy was September 12;
however, it required Schaefer to obtain a quitclaim deed or an interspousal deed from
Hajj’s husband since Hajj held the title as a married woman. Without the interspousal
transfer grant deed executed by Abi-Abdallah, OCT refused to provide insurance.
In September 2018, when Schaefer contacted Hajj and Abi-Abdallah to obtain the
necessary documents, she was told that Hajj intended to cancel the escrow. However,
since Hajj never took any action to cancel the escrow, Schaefer continued to work on
satisfying all the conditions necessary to close. She prepared the interspousal transfer
grant deed using the name, Tony Hajj, as the grantee because she was unaware that Hajj’s
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husband had a different last name. On September 17, 2018, Schaefer sent a cover letter
to Hajj that included the interspousal transfer grant deed and amended escrow
instructions. The cover letter instructed Hajj to call if she had any questions; Hajj never
called. The amended instructions provided that Richardson was assigning its right, title,
interest, and obligation in and to the escrow to CRE, the buyer, and entity in which title
would vest.4 According to Schaefer, after August 18, 2018, Hajj never cooperated in any
efforts to close escrow, and Abi-Abdallah told Schaefer that they (Hajj and Abi-
Abdallah) did not want to cooperate, and Hajj refused to perform.
On September 27, 2018, Charles emailed Schaefer about the anticipated closing
statement and requested wiring instructions so he could deposit $100,000 into escrow.5
In response, she suggested that he not deposit the funds in escrow until “we have all the
documents from the Seller and the title company has approved them. Once your funds
are in escrow, if we are not able to close because of missing documents or anything else,
we would not be able to release the money back to you without mutually agreed
instruction from you AND the seller.” Schaefer testified that they “don’t request funds to
be deposited in escrow unless we’re in a position to close.”
4 As previously stated, on August 6, 2018, Charles transferred $100,000 from the trust to CRE.
5 “Melvena, [¶] RE: APN 666-402-004 [¶] Please forward me the anticipated closing statement and the wiring instructions for the above referenced property. I anticipate the seller will be giving you the documents you have requested from her so we can close. Additionally I believe you said you now have the new title report, (Prelim). Have you sent that to me for my approval, if not please do so, as I do not want any further delays on this escrow. If I have anything incorrectly stated here please contact me as soon as possible. [¶] Thank you. [¶] Chick.”
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4. Abi-Abdallah’s testimony.
Real estate agent James Stuart initially contacted Abi-Abdallah and proposed a
sale of his wife’s vacant lot in Palm Springs. A contract to sell the property to
Richardson was entered into, and Abi-Abdallah acted as Hajj’s “agent in all dealings with
this transaction.” On June 27, 2018, escrow opened with Liberty Escrow, and Schaefer
was the escrow officer. On August 13, the official date that escrow was to close, Abi-
Abdallah called Schaefer to find out the “status of the agreement to make sure that the
deal went through.” Otherwise, he had one other direct communication with Schaefer
“sometime in November of 2018” when he sought a legible copy of the agreement.
Abi-Abdallah received Schaefer’s September 17, 2018 letter but had an issue with
the interspousal transfer grant deed because it did not have his correct name. He never
called Schaefer to tell her that his name on the deed was wrong. Rather, he told Stuart
that the name on the interspousal transfer grant deed was incorrect, and he (Abi-
Abdallah) could not sign it; Stuart started yelling and threatening to sue. On or about
September 27, Abi-Abdallah received the notice to seller to perform but never discussed
it with Stuart or Schaefer. On October 20, Abi-Abdallah received the lis pendens. Four
days later, he received a letter with an offer to mediate the issue with Al Wenzell. In
response, Abi-Abdallah spoke with Wenzel, explaining the status of the case and telling
him that “they are not willing to finish the agreement.” He (Abi-Abdallah) also told
Wenzel that “Hajj and [he] were prepared to close escrow” under the original terms.
On or about November 16, 2018, Abi-Abdallah spoke with Richardson’s attorney
and told him that they (Hajj and Abi-Abdallah) were prepared to close escrow. He also
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said that Hajj would participate in arbitration. Abi-Abdallah testified that “at all times
from September 17 and onward,” he and Hajj remained “ready, willing, and able to close
the escrow.” However, he stated that Richardson never provided “any verification of
funds,” never removed “any contingencies as specified in sections 19A and B of the
contract,” and never signed the amended escrow instructions. He further added that Hajj
had incurred attorney fees in this case. On cross-examination, he denied declaring, or
telling anyone, after August 13, 2018, that the contract was null and void.
B. The Judgment.
The trial court concluded that Hajj materially breached the agreement (by failing
to tender marketable title at the time the contract matured) and failed to comply with
escrow’s reasonable and appropriate demands, thereby excusing further performance by
Richardson and entitling it to rescind and recover its deposit. The court specifically
found Schaefer’s testimony was credible but not that of Hajj or Abi-Abdallah. It ruled
that Richardson is entitled to its $10,000 deposit, along with costs and reasonable
attorney fees as the prevailing party.
Hajj filed and served a request for a written statement of decision specifying
34 allegedly controverted issues,6 most of which the trial court declined to address
because they raised subsidiary issues or sought evidentiary findings. After the court
issued its proposed statement of decision, Hajj lodged seven objections on the grounds
the statement of decision (1) fails to make a finding as to when each party’s performance
6 The superior court clerk was unable to locate this document but “a receive and forward entry” was noted in the case management system.
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was due; (2) fails to make a finding as to whether Richardson was ready, willing, and
able to perform; (3) fails to make a finding as to when Hajj anticipatorily breached the
contract and repudiated; (4) fails to make a finding as to whether Hajj retracted her
repudiation and, if she did, whether the retraction occurred before performance was due;
(5) fails to make a finding as to whether Hajj breached the agreement; (6) fails to state the
factual and legal basis for the conclusion that Hajj failed to deliver marketable title; and
(7) is inconsistent “in that it finds that [Richardson] had the power to obtain its deposit
funds by serving the required notices and terminating escrow but that it did not do so but
also concludes that [Richardson’s] unilateral rescission of the Agreement was effective.”
The proposed statement of decision became final without change.
On September 29, 2021, judgment was entered for Richardson, which was
adjudged to be the prevailing party entitled to recover reasonable attorney fees and costs
pursuant to the agreement.
C. The Award of Attorney Fees.
On October 25, 2021, Richardson moved for its attorney fees and costs pursuant to
Civil Code section 1717. In support of the fees incurred, Richardson submitted its
counsel’s (David A. Grabhorn (Grabhorn)) declaration, which attached the retainer
agreement and a compilation of Grabhorn’s daily time entries of actions taken in the
litigation. Hajj opposed the motion. On January 25, 2022, the trial court granted the
motion and awarded $165,637.50 in attorney fees and $3,843.22 in costs.
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II. DISCUSSION
Hajj presents three issues on appeal: (1) “Whether the Trial Court committed
reversible error by failing to make several necessary findings as to specified issues of
material fact”; (2) “Whether the evidence supports the Judgment”; and (3) “Whether the
Trial Court committed reversible error by awarding of attorney’s fees in the amount of
$165,637.50.”
A. Guiding Principles for the Statement of Decision.
“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. [Citation.]
“A single witness’s testimony may constitute substantial evidence to support a
finding. [Citation.] It is not our role as a reviewing court to reweigh the evidence or to
assess witness credibility. [Citation.] ‘A judgment or order of a lower court is presumed
to be correct on appeal, and all intendments and presumptions are indulged in favor of its
correctness.’ [Citation.] Specifically, ‘[u]nder the doctrine of implied findings, the
reviewing court must infer, following a bench trial, that the trial court impliedly made
every factual finding necessary to support its decision.’ [Citation.]
“When a proper request for a statement of decision has been made, the scope of
appellate review may be affected. [Citation.] Under [Code of Civil Procedure]
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section 632, upon a party’s request after trial, the court must issue a statement of decision
‘explaining the factual and legal basis for its decision as to each of the principal
controverted issues at trial.’ And under [Code of Civil Procedure] section 634, if the
statement of decision does not resolve a controverted issue or is ambiguous, and the
omission or ambiguity was brought to the attention of the trial court, ‘it shall not be
inferred on appeal . . . that the trial court decided in favor of the prevailing party as to
those facts or on that issue.’ [Citations.]
“The statutory statement of decision process following ‘“the trial of a question of
fact by the court” . . . [¶] . . . “is for the benefit of the court and the parties. To the court it
gives an opportunity to place upon [the] record, in definite written form, its view of the
facts and the law of the case, and to make the case easily reviewable on appeal by
exhibiting the exact grounds upon which judgment rests. To the parties, it furnishes the
means, in many instances, of having their cause reviewed without great expense.”’
[Citation.] A proper statement of decision is thus essential to effective appellate review.
‘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. [Citation.]
“Together, [Code of Civil Procedure] sections 632 and 634, as implemented by
rule 3.1590(d)–(g) of the California Rules of Court, establish a two-step procedure for
requesting a statement of decision and preserving objections for pursuit on appeal. First,
following the court’s announcement of its tentative decision, [Code of Civil Procedure]
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section 632 requires a party to specify, in timely fashion and in proper form, ‘those
controverted issues as to which the party is requesting a statement of decision. After a
party has requested the statement, any party may make proposals as to the content of the
statement of decision.’ This initial step serves the function of advising the trial court of
exactly what issues the parties view as materially controverted at the close of the
evidence, just as the process of settling jury instructions serves to frame issues for
decision by the fact finder in the jury trial setting. Second, [Code of Civil Procedure]
section 634 requires that any omissions or ambiguities in the statement of decision must
be ‘brought to the attention of the trial court either prior to entry of judgment or in
conjunction with’ a new trial motion ([Code Civ. Proc.,] § 657) or a motion to vacate the
judgment ([Code Civ. Proc.,] § 663), thus allowing the court to respond to objections
before the taking of an appeal. The second step is not a substitute for the first.
Objections are germane only as to issues framed as materially controverted under [Code
of Civil Procedure] section 632.
“For the doctrine of implied findings to be disabled on appeal, both steps of the
two-step procedure under [Code of Civil Procedure] section 632 and 634 must be
followed. [Citation.] Where a party fails to ‘specify . . . controverted issues’ or
otherwise ‘make proposals as to the content’ of a statement of decision under [Code of
Civil Procedure] section 632 (forcing the trial court to guess at what issues remain live
during preparation of the statement of decision), or where a party complies with [Code of
Civil Procedure] section 632 but fails to object under [Code of Civil Procedure] section
634 (depriving the trial court of the opportunity to clarify or supplement its statement of
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decision before losing jurisdiction), objections to the adequacy of a statement of decision
may be deemed waived on appeal. [Citation.] Because either procedural defect impedes
the trial court’s ability to fulfill its duty under [Code of Civil Procedure] section 632 and
potentially undermines the effectiveness of any statement of decision it prepares as a tool
of appellate review, strict adherence to both steps of the process is necessary before we
will reverse the presumption of correctness generally accorded trial court judgments on
appeal.
“Even where proper procedure under [Code of Civil Procedure] sections 632 and
634 has been followed punctiliously, ‘[t]he trial court is not required to respond point by
point to the issues posed in a request for statement of decision. The court’s statement of
decision is sufficient if it fairly discloses the court’s determination as to the ultimate facts
and material issues in the case.’ [Citations.] ‘When this rule is applied, the term
“ultimate fact” generally refers to a core fact, such as an essential element of a claim.’
[Citation.] ‘Ultimate facts are distinguished from evidentiary facts and from legal
conclusions.’ [Citation.] Thus, a court is not expected to make findings with regard to
‘detailed evidentiary facts or to make minute findings as to individual items of evidence.’
[Citation.] In addition, ‘[e]ven though a court fails to make a finding on a particular
matter, if the judgment is otherwise supported, the omission is harmless error unless the
evidence is sufficient to sustain a finding in favor of the complaining party which would
have the effect of countervailing or destroying other findings.’” (Thompson v. Asimos
B. Trial Court’s Failure to Make Findings on Specified Issues of Fact.
Hajj faults the trial court for failing to make findings on these issues of fact:
(1) when performance was due under the contract; (2) whether Richardson was ready,
willing, and able to perform; (3) whether Richardson breached the contract and when
Hajj anticipatorily breached and repudiated the contract; (4) whether Hajj retracted her
repudiation before performance was due; and (5) the factual and legal basis for the
court’s conclusion that Hajj did not deliver marketable title. Although we will address
each of Hajj’s issues, ultimately, the statement of decision resolved these collateral issues
by finding that Hajj breached the agreement, thereby excusing further performance by
Richardson.
Regarding the issue of when performance was due and whether Richardson was
ready, willing, and able to perform, the trial court explained that escrow was unable to
close on August 13, 2018, because the title company needed to establish that Hajj had
clear title to convey. Although the statement of decision does not state a specific date
when performance was due, it references Hajj’s failure “to tender marketable title at the
time the contract matured,” and the need for Hajj to “either sign an interspousal transfer
deed or take other action to clear title relative to her husband’s potential interest, etc.” and,
thus, identifies the date as on or shortly after Schaefer’s September 17, 2018 letter to Hajj
concerning the interspousal transfer grant deed. According to Schaefer, whose testimony
was “highly credible,” “Abi-Abdallah, as Hajj’s agent, was not cooperating with her as
required by the escrow instructions . . . and . . . Hajj’s refusal to cooperate . . . led to a
delay in closing.” Likewise, the court found Schaefer’s testimony that “she would not
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accept closing funds from [Richardson] until all documents required to close, including a
policy of title insurance, were completed,” sufficiently explained why Richardson, who
was ready, willing, and able to perform, did not deposit the remaining $100,000 into
escrow.7
Concerning when Hajj anticipatorily breached or repudiated the agreement and
whether Richardson breached, the trial court noted that as of August 13, 2018, Hajj
“openly stated, through her agent, that she believed the Agreement was ‘null and void’
because escrow had not timely closed, even though the evidence was that the close of
escrow was delayed for reasons beyond the control of either the buyer or the seller or
based on Hajj’s own conduct.” The court added that Schaefer “credibly testified that
Abi-Abdallah, as Hajj’s agent, was not cooperating with her as required by the escrow
instructions . . . and that it was Hajj’s refusal to cooperate that led to a delay in closing.”
7 Hajj argues this case is factually similar to Pittman v. Canham (1992) 2 Cal.App.4th 556. Not so. In that case, Pittman contracted with Canham to purchase 56 acres of property. The contract specified that time was of the essence. The date set for close of escrow passed without either party tendering performance. Months later, Canham contracted to sell the property to a third party. (Id. at p. 558.) Pittman sued for specific performance. The trial court rejected the claim, finding that Canham had not waived time for performance, and Pittman had defaulted when he failed to tender the purchase money by the date set for close of escrow. (Id. at p. 559.) The appellate court affirmed, stating, “the failure of both parties to perform concurrent conditions does not leave the contract open for an indefinite period so that either party can tender performance at his leisure.” (Id. at p. 559.) Instead, “[t]he failure of both parties to perform concurrent conditions during the time for performance results in a discharge of both parties’ duty to perform.” (Id. at pp. 559-560.) Even if we assume that time was of the essence to the parties in the case before us, we cannot conclude that the mutual obligations of the parties could be unilaterally extinguished because escrow was not able to close on August 13, 2018. This was not a situation in which the simple exchange of deed for consideration was involved. Rather, the escrow required an interspousal transfer deed, which Hajj failed to provide.
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Regarding the issue of whether Richardson breached the agreement, the court
relied on Schaefer’s testimony to conclude that it did not: “Shaefer also credibly testified
that she told [Richardson] that she could not accept into escrow a deposit of the
remaining funds until the title issue was cleared up by Hajj.” Moreover, while Hajj
“repeatedly asserted that both parties breached the Agreement,” she “did not raise any of
these other issues, seek to rescind performance, or take any steps to cancel the sale or
escrow based on [Richardson’s] conduct or alleged failures to, for example, ‘verify’
funds or remove appraisal contingencies. Hajj did not at any time, to anyone, claim that
these issues constituted a breach of the Agreement or the [escrow] Instructions until she
refused to provide the required information to escrow.”
In determining whether Hajj retracted her repudiation prior to the time
performance was due, the trial court concluded that she did not. The court explained that
Hajj “left much of the responsibility for completing the sale to her husband and agent,
Abi-Abdallah, who was unable to offer credible or consistent testimony at trial about
what occurred.” The court noted: “Abi-Abdallah contended that at all times, and long
after the escrow was initially set to close, that he wanted . . . to close escrow and sell the
property and that he was prepared to sign an interspousal transfer deed. He testified,
though, that he could not sign the interspousal transfer deed because it did not state his
correct legal name. He did admit to using that name, Tony. It appears he also used Tony
Hajj or Tony Abi as a nickname. When asked why he could not have written his correct
legal name on the deed, Abi-Abdallah stated, without any basis, that the deed had to be
typed and also that he did not think he was allowed to alter the document. He also
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testified that he could not correct the name himself and was at a loss about what to do
with the deed. When asked why he did not contact escrow and ask that he be sent a deed
with his correct legal name, he placed blame on realtor Stuart, who is now deceased.
This explanation was undercut by Abi-Abdallah himself, who testified that he regularly
returned documents directly to escrow and did not go through Stuart, and also that Stuart
was angry at him and threatened to sue him because of his refusal to sign the deed and
complete the sale.”
As further support for its conclusion that Hajj did not retract her repudiation of the
agreement, the trial court stated: “Abi-Abdallah also testified that he did not want to
complete the sale because the buyer intended to use a different name to take title. Aside
from the fact that this testimony was not consistent with other testimony by Abi-Abdallah
regarding his willingness and strong desire to close escrow even after litigation in this
case began, Abi-Abdallah could not explain why the name used by the buyer in taking
title would alter his desire to enter into the sale, which was a cash transaction. At trial
Abi-Abdallah simply stated that the closing would have been delayed by two months if
the buyer took title under a name different than that stated on the Agreement. It is
unclear why Abi-Abdallah believed that the closing would be delayed by this change, and
at trial he could not articulate any basis for that belief. The theory at trial seems to have
been that by designating a different entity to take title from the entity that executed the
Agreement that this was a breach of the Agreement or a basis to rescind. This
explanation strains credulity and was not supported by credible evidence.” Thus, the
court found that Hajj breached the agreement by failing “to tender marketable title at the
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time the contract matured,” and Richardson was “entitled to rescind, refuse to make
additional payments, and to recover any amount paid.”
The trial court rejected Hajj’s postlitigation expression of a desire to complete the
transaction as “not material” because “she still has not cleared up title marketability
issues identified by the title company or located another title insurer willing to issue a
policy even without an interspousal transfer deed or other document evidencing that Abi-
Abdallah has no entitlement or interest in the property.” Moreover, Hajj’s postlitigation
retraction of her repudiation did not cure her breach. (Gherman v. Colburn (1977)
72 Cal.App.3d 544, 565 [“A repudiation is, by its inherent nature, irretrievable after an
action is filed.”].)
Finally, we disagree with Hajj’s assertion that the trial court failed to state the
factual and legal basis why she did not deliver marketable title. She asserts that her
execution of the “notarized Grant Deed” that identified her as “‘Katia Hajj, a married
woman’” was sufficient to constitute marketable title. Not so. The court noted OCT’s
efforts “to establish that Hajj had clear title to convey e.g., . . . requesting Hajj either sign
an interspousal transfer deed or take other action to clear title relative to her husband’s
potential interest, etc.” Neither Hajj nor her husband furnished the required document.
As the court observed: “[A]ll competent credible evidence was that Hajj refused to
comply with escrow officer demands, all of which were reasonably necessary to ensure
that escrow could transfer marketable title that was insured by a title insurer.” For its
legal basis, the court referenced Civil Code section 1689, subdivision (b), which
provides: “A party to a contract may rescind the contract in the following cases: . . .
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[¶] . . . [¶] (2) If the consideration for the obligation of the rescinding party fails, in
whole or in part, through the fault of the party as to whom he rescinds.” (Italics added.)
The court added: “Where a party to a contract fails to perform in accordance with the
contract, or if the consideration he is required to give otherwise fails in whole or in part
through his fault, the other party may invoke this failure as a basis for rescinding or
terminating the contract, as long as the failure or refusal to perform constitutes such a
material breach as to justify rescission or termination. (Taliaferro v. Davis (1963) 216
Cal. App. 2d 398, 412.)” By failing to provide the interspousal transfer grant deed, Hajj
failed to provide marketable title and, thus, failed to perform in accordance with the
agreement. (Post v. Palpar, Inc. (1960) 184 Cal.App.2d 676, 680 [“The failure to tender
marketable title at the time the contract matures is a material breach of the
contract . . . .”].)
To summarize, Hajj’s criticism of the statement of decision is unfounded. Given
the trial court’s findings on the material issues, any alleged failure to make findings on
collateral or immaterial issues does not render the statement of decision deficient. “If
findings are made upon issues which determine a cause, other issues become immaterial
and a failure to find thereon does not constitute prejudicial error.” (Bealmear v. Smith
(1949) 91 Cal.App.2d 179, 181-182; see Division of Labor Law Enforcement v.
Transpacific Transportation Co. (1977) 69 Cal.App.3d 268, 278, [same]; see also
Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal.App.3d 206, 214 [Where the findings
made by the trial court are sufficient to “defeat appellant’s claim,” other issues become
“immaterial” and “any error as to other findings is not prejudicial”].)
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C. Sufficiency of Evidence.
Hajj contends the evidence is insufficient to establish that Richardson was able to
perform, timely performed or tendered performance, or performed all obligations prior to
her repudiation. She further contends the evidence fails to support a finding that she did
not retract her repudiation before performance was due. We conclude substantial
evidence supports the judgment.
1. Richardson’s ability to perform and tender of performance.
Hajj asserts that Richardson breached the agreement by failing to show that it was
able to perform, that it timely tendered performance, and that it performed its obligations
under the contract prior to her repudiation. Regarding Richardson’s ability to perform,
Elicia identified the source of the funds ($100,000) necessary to purchase the property
and Charles’s ability to access them. On September 27, 2018, anticipating that Hajj
would be providing the documents Schaefer had requested for closing escrow, Charles
tendered performance by requesting instructions to wire the funds into escrow.
Nonetheless, Schaefer prevented him from doing so by suggesting that he wait until “we
have all the documents from the Seller and the title company has approved them.” She
explained that “[o]nce your funds are in escrow, if we are not able to close because of
missing documents or anything else, we would not be able to release the money back to
you without mutually agreed instructions from you AND the seller.” Schaefer also
testified that they “don’t request funds to be deposited in escrow unless we’re in a
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position to close.” Thus, the evidence shows that Richardson was able to perform and
timely tendered performance.8
2. Richardson’s obligations.
Hajj claims that Richardson failed to comply with the paragraphs 3I, 3J, and 19B
of the agreement. Paragraph 3I9 requires Richardson to remove the appraisal
contingency within 17 days of acceptance. According to paragraph 3J, there was no loan
contingency because the offer was “ALL CASH.” Paragraph 3J provides that “ALL
CASH OFFER (if checked): Buyer shall, within 7 (or [21]) Days After Acceptance,
Deliver to Seller written verification of sufficient funds to close this transaction. (If
checked, . . . verification attached.)” Although these two paragraphs provide short time
deadlines for Richardson’s responses, paragraph E states that the balance of the purchase
price ($100,000) need only be deposited in escrow “within sufficient time to close.”
Further, as the trial court noted, the evidence shows that “Hajj did not raise any of these
other issues, seek to rescind performance, or take any steps to cancel the sale or escrow
based on [Richardson’s] conduct or alleged failures to, for example, ‘verify’ funds or
8 Hajj cites Am-Cal Inv. Co. v. Sharlyn Estates, Inc. (1967) 255 Cal.App.2d 526, 539-540, for the proposition that a “finding of the buyer’s ability to pay the purchase price is required even when a tender of performance has been excused due to repudiation by the seller.” As previously stated, the evidence is sufficient to support a finding that Richardson was ready, willing, and able to purchase the property.
9 Paragraph 3I, in relevant part, provides: “This Agreement, is . . . contingent upon a written appraisal of the Property by a licensed or certified appraiser at no less than the specified purchase price. If there is a loan contingency; Buyer’s removal of the loan contingency shall be deemed removal of this appraisal contingency . . . . If there is no loan contingency, Buyer shall, as specified in paragraph 19B(3), in writing remove the appraisal contingency or cancel this Agreement within 17 . . . Days After Acceptance.”
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remove appraisal contingencies. Hajj did not at any time, or to anyone, claim that these
issues constituted a breach of the Agreement or the [escrow] Instructions until she
refused to provide the required information to escrow.”
Paragraph 19B(1)-(3) states that Richardson has 21 days after acceptance “to
complete all Buyer Investigations; approve all disclosures, reports and other applicable
information, which Buyer receives from Seller; and approve all other matters affecting
the Property (including lead-based paint and lead-based paint hazards as well as other
information specified in paragraph 6 and insurability of Buyer and the Property)”; to
“request that Seller make repairs or take any other action regarding the Property (C.A.R.
Form RR)”; and to “[d]eliver to Seller either (i) a removal of the applicable contingency
(C.A.R. Form CR), or (ii) a cancellation (C.A.R. Form CC) of this Agreement based
upon a remaining contingency or Seller’s failure to Deliver the specified items.”
However, paragraph 3D notes that Richardson is purchasing the property “‘AS IS’” with
no warranties from Hajj or the real estate agent, and paragraph 19B(4) provides: “Even
after the end of the time specified in 19B(1) and before Seller cancels this Agreement, if
at all, pursuant to 19C, Buyer retains the right to either (i) in writing remove remaining
contingencies, or (ii) cancel this Agreement based upon a remaining contingency or
Sellers failure to Deliver the specified items. Once Buyer’s written removal of all
contingencies is Delivered to Seller, Seller may not cancel this Agreement pursuant to
19C(1).” (Italics added.)
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In short, Hajj’s identified incidents of Richardson’s alleged breach amount to
nothing more than red herrings since other parts of the agreement extended the time of,
excused, or nullified the requirement/condition prior to Hajj’s repudiation of the contract.
3. Hajj’s anticipatory breach of the Agreement.
Hajj claims there is no substantial evidence to support a finding that she did not
retract her repudiation of the agreement before performance was due. She contends her
performance was not due until Richardson deposited the remainder of the purchase price
and executed the amended escrow instructions, and the “undisputed evidence establishes
[she] tendered performance in November of 2018 but that [Richardson] rejected that
tender.” We reject her claim.
Schaefer testified that after August 18, 2018, she was told that Hajj intended to
cancel the escrow. Subsequently, Hajj never cooperated in any efforts to close escrow
and, after September 17, 2018, failed to execute and return the interspousal transfer grant
deed that was required by OCT and necessary to transfer marketable title. On September
27, when Charles requested wiring instructions to deposit the funds necessary to
complete Richardson’s purchase of the property, Schaefer stopped him from doing so.
Abi-Abdallah’s words, coupled with Hajj’s inactions, constituted an anticipatory breach
of the Agreement. When Hajj further refused to respond to Richardson’s written demand
to close escrow, Richardson initiated this action on October 16, 2018. As previously
stated, Hajj’s postlitigation (Nov. 2018) retraction of her repudiation did not cure her
breach. (Gherman v. Colburn, supra, 72 Cal.App.3d at p. 565 [“A repudiation is, by its
inherent nature, irretrievable after an action is filed.”].)
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Notwithstanding the above, Hajj argues that she tendered performance on or about
November 16, 2018, when Abi-Abdallah spoke with the mediator at least twice and
tendered performance to Grabhorn, Richardson’s attorney. Abi-Abdallah testified that, at
all times from September 17 onward, he and Hajj remained ready, willing, and able to
close escrow, and he was prepared to sign a properly drafted interspousal transfer grant
deed. Hajj references Grabhorn’s daily time records that evidence the conversation
between Abi-Abdallah and Grabhorn, Grabhorn’s conversation with Richardson, and
Grabhorn’s follow-up letter. However, Grabhorn’s letter refutes Hajj’s argument that she
tendered performance. According to the letter dated November 20, 2018, Grabhorn
called Hajj and spoke with Abi-Abdallah who explained that Hajj’s “refusal to complete
the sale required by the [Agreement] was based on the fact that the title insurance
company was unable to certify clear title to the property within 30 days after the
execution of the Agreement.” Abi-Abdallah then “made a settlement proposal.”
Richardson rejected the settlement offer, made a counteroffer, and Abi-Abdallah
“summarily rejected [it] on [Hajj’s] behalf.” Contrary to Hajj’s assertion, her offer to
settle the litigation initiated by Richardson does not constitute a retraction of her
repudiation of the agreement. Thus, we conclude that the evidence supports a finding
that Hajj failed to retract her anticipatory breach of the agreement before performance
was due.
D. Award of Attorney Fees.
Hajj contends the criteria for awarding attorney fees were not met because the trial
court failed to make a finding as to what amount was actually incurred by Richardson,
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and the award is excessive because a substantial part of the fees claimed was not
reasonably necessary.
1. Applicable principles.
Civil Code section 1717 “governs attorney fees awards authorized by contract and
incurred in litigating claims sounding in contract.” (Douglas E. Barnhart, Inc. v. CMC
Fabricators, Inc. (2012) 211 Cal.App.4th 230, 237.) “An action (or cause of action) is
‘on a contract’ for purposes of [Civil Code] section 1717 if (1) the action (or cause of
action) ‘involves’ an agreement, in the sense that the action (or cause of action) arises out
of, is based upon, or relates to an agreement by seeking to define or interpret its terms or
to determine or enforce a party’s rights or duties under the agreement, and (2) the
agreement contains an attorney fees clause.” (Id. at pp. 241-242; accord, Eden Township
Healthcare Dist. v. Eden Medical Center (2013) 220 Cal.App.4th 418, 427.) Courts
liberally construe the term “on a contract” in Civil Code section 1717. (Douglas E.
Barnhart, Inc. v. CMC Fabricators, Inc., at p. 240.) We independently review a trial
court’s determination whether the criteria for awarding attorney fees has been met. (Id. at
p. 237.)
2. Criteria for awarding fees and evidence of amount actually incurred.
Hajj faults the trial court for failing to make a finding as to what amount, if any,
Richardson actually incurred. She also criticizes Grabhorn’s declaration for failing to
include the new engagement letter referenced in the compilation of his daily time entries.
Thus, Hajj contends the award of attorney fees is improper because the motion for
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attorney fees failed to establish the criteria and provide evidence of the amount
Richardson actually incurred. We disagree.
Here, Grabhorn submitted a declaration and a compilation of daily time entries of
work performed. He declared that (1) he was counsel of record for Richardson in this
action; (2) he, his associates, and his paralegal at the law firm of Messina & Hankin, LLP,
performed work in representing Richardson in its claims against Hajj asserted in this
action; and (3) the fees being sought arose out of their representation of Richardson in this
action. Grabhorn’s statements on these points are statements of fact—they describe the
nature of his professional relationship with Richardson and the fees being sought—that are
supported by his personal knowledge as counsel of record. The statements adequately
establish the legal services performed on Richardson’s behalf pursuant to an attorney-
client relationship, and that Richardson’s right to fees grew out of that relationship.
Hajj contends that if Richardson was billed an amount less than the amount the
trial court determined was reasonable, the fee award would be limited to that amount.
(Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.) She asserts
there is no evidence as to what Richardson was actually billed. Contrary to Hajj’s
assertion, Grabhorn’s declaration and the attached compilation of daily time entries
sufficiently established Richardson’s “incurred” attorney fees within the meaning of Civil
Code section 1717, subdivision (a). (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th
1084, 1097 (Drexler) [statutory attorney fees “incurred” are not restricted to only those
fees a litigant actual pays or becomes liable to pay from his own assets; award of fees
under Civil Code, § 1717 upheld]; Musaelian v. Adams (2009) 45 Cal.4th 512, 520
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[attorney fees are “incurred” when “there was an attorney-client relationship, the attorney
performed services on behalf of the client, and the attorney’s right to fees grew out of the
attorney-client relationship”]; see Code Civ. Proc., § 1033.5, subd. (c)(1) [“Costs are
allowable if incurred, whether or not paid.”].) Accordingly, Grabhorn’s declaration
reflects Richardson’s “incurred” attorney fees in its action against Hajj.
We likewise reject Hajj’s challenge to Grabhorn’s failure to attach the new
engagement letter referenced on February 23 and March 5, 2021, in the compilation of
daily time entries. Hajj offers nothing more than speculation that the “2/23/21 and 3/5/21
entries on Exhibit B suggests that there was also a modification to [the] retainer
agreement.” According to Grabhorn, “a year into the case and shortly after [Richardson’s
motion for summary judgment (MSJ)] failed, Charles Richardson was unexpectedly
diagnosed with terminal cancer. He died less than four weeks later. With that change in
circumstances, [Richardson’s] entire purpose for the transaction was effectively
frustrated.” Richardson’s MSJ was heard on December 12, 2019. The operative
pleadings state that on December 18, 2019, Elicia became acting sole manager of
Richardson upon Charles’s incapacitation. His death 10 days later made this change
irrevocable. Thus, a more reasonable interpretation of the reference to a new engagement
letter is Charles’s death on December 28, 2019, necessitated adding Elicia’s signature on
the engagement letter.
Moreover, Richardson recovered its attorney fees under Civil Code section 1717,
which provides: “In any action on a contract, where the contract specifically provides
that attorney’s fees and costs, which are incurred to enforce that contract, shall be
27
awarded either to one of the parties or to the prevailing party, then the party who is
determined to be the party prevailing on the contract, whether he or she is the party
specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition
to other costs.” The statute does not, however, require a party seeking to prove the
existence of an attorney-client relationship governed by a written agreement to do so by
producing a copy of thereof. (Ibid.)
3. The award of attorney fees is not excessive.
Hajj asserts the award of attorney fees is excessive. Not so.
The lodestar method for calculating attorney fees applies to any statutory attorney
fees award, unless the statute authorizing the award provides for another method of
calculation. (Glaviano v. Sacramento City Unified School Dist. (2018) 22 Cal.App.5th
744, 750-751.) “Under the lodestar method, the trial court must first determine the
lodestar figure—the reasonable hours spent multiplied by the reasonable hourly rate—
based on a careful compilation of the time spent and reasonable hourly compensation of
each attorney involved in the presentation of the case.” (Id. at p. 751.) The moving party
bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc,
§ 1033.5, subd. (c).) The trial court is vested with broad authority to determine the
amount of a reasonable fee. (Drexler, supra, 22 Cal.4th at p. 1095.) When a party is
entitled to fees as costs pursuant to Civil Code sections 1717 and 1032, the trial court, in
determining the reasonableness of such fees, may “‘take all of the circumstances [of the
case] into account.’” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 683.) The moving
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party’s verified billing invoices are prima facie evidence that costs, expenses, and
services listed were necessarily incurred. (Id. at p. 682.)
Here, the trial court determined the lodestar to be $165,637.50, based on finding
that Grabhorn’s hourly rate ($375) and billed hours (441.7) were reasonable. Hajj does
not contest Grabhorn’s hourly rate of $375; rather, she challenges the award of fees as
excessive. Specifically, she argues that some of the fees claimed were not reasonably
necessary because they reflect time spent pursuing Richardson’s initial claim for specific
performance and seeking summary judgment. She asserts that her offer to complete the
transaction after October 24, 2018, would have allowed Richardson to purchase the
property and avoid further legal fees. She further asserts that the issues were simple, trial
was only 10 hours long, little discovery was conducted, Grabhorn’s January 14, 2019
estimate of the legal fees associated with the prosecution of this case was only $65,000,
the second amended complaint sought reasonable attorney fees of at least $45,000, and
Richardson was only awarded $10,000 in damages. We agree that the issues were
simple, that the trial was short, and that the damage award was only $10,000. However,
we do not agree that the legal fees awarded by the trial court were excessive when “‘all of
the circumstances [of the case are taken] into account.’” (Hadley v. Krepel, supra, 167
Cal.App.3d at p. 683.)
The trial court possessed “great familiarity with this case. From the first Case
Management Conference, [it] urged the parties to resolve the issues amicably because,
per the parties themselves, [Richardson] wanted to buy the property and [Hajj] wanted to
sell it.” The court “repeatedly noted to all parties on the record throughout the litigation
29
that the costs of the litigation were increasing and that they could quickly outpace the
damages sought in the operative complaint.” Nonetheless, Hajj “actively litigated this
case and drove up the costs of the litigation, whether intentionally or not . . . . [Thus, to
deny recovery of the fees incurred due to Hajj’s actions] would be unjust and would
countenance [her] sharp practices in the underlying transaction and reward [her] often
unsupportable actions during the litigation.”
As the court observed, “it was evident at trial that [Hajj’s] repeated claims that she
wanted to sell the property and that she took steps to do so were false.” For example, her
offer to complete the transaction sometime in November 2018 was refuted by Grabhorn’s
letter dated November 20, 2018. In that letter, Grabhorn referenced his conversation with
Abi-Abdallah, who explained why Hajj refused to complete the sale, but proposed a
settlement of the action. Richardson rejected the settlement offer, made a counteroffer,
and Abi-Abdallah “summarily rejected [it] on [Hajj’s] behalf.” No evidence was offered
to support the claim that Hajj offered to complete the sale on the same terms and
conditions outlined in the agreement. We agree with the trial court’s assessment that
“litigation was necessary given [Hajj’s] recalcitrance throughout the litigation.”
Nonetheless, Hajj argues that Richardson should not recover attorney fees for any
legal work performed to prosecute its initial claim for specific performance because the
operative pleadings sought rescission of the agreement and breach of contract damages.
However, as the trial court noted, Charles’s unexpected death changed the nature of the
case and the damages sought.
30
Finally, Hajj argues “the award of attorney’s fees should be considered in
relationship to the damages awarded.” She cites Karton v. Ari Design & Construction,
Inc. (2021) 61 Cal.App.5th 734, but offers no analysis. Instead, she emphasizes the
damages award was limited to $10,000. She overlooks the fact that the trial court that
awarded those damages also determined a lodestar of $165,637.50 to be reasonable. “An
experienced trial judge is in the best position to evaluate the value of professional
services rendered in the trial court. We presume the fee approved by the trial court is
reasonable. We will not disturb the trial court’s judgment unless it is clearly wrong. The
burden is on the objector to show error. [Citation.] Equitable principles inform this
project.” (Id. at pp. 743-744 [the appellate court refused to reverse the trial court’s
reduction of the amount of fees].)
In short, Hajj has failed to show the trial court erred in awarding $165,637.50 in
attorney fees or that the award is excessive.
III. DISPOSITION
The judgment is affirmed. Richardson is to recover its costs on appeal.