California Cases May 29, 2020: Mac Sohrabi v. Hadjibabaie

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2017-00004907-CU-CO-NC)

APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Affirmed.

Behdad Baseghi for Defendant and Appellant.

Dart Law and Matthew B. Dart for Plaintiffs and Respondents.

This appeal involves a dispute between former business partners Mac Sohrabi (plaintiff) and Farhad Hadjibabaie (defendant) over plaintiff's exit from their avocado

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ranch business, Warren Hills, LLC (Warren Hills). The business was encumbered with loans and operating at a loss, and the parties did not agree on how to proceed. They eventually entered a Redemption Agreement, pursuant to which the company would redeem plaintiff's interest, defendant would become the sole owner, and defendant would indemnify and release plaintiff from company liabilities. The agreement indicated that if defendant did not refinance by a particular date, the agreement would terminate or plaintiff could elect to proceed. Defendant was unable to refinance. Plaintiff contends he verbally elected to proceed, which defendant disputes. Nonetheless, defendant proceeded to file tax forms, communicate with lenders, and list the property as a sole owner, and plaintiff was no longer involved. Eventually, the loan obligations went into default and the ranch was sold in foreclosure.

Plaintiff filed a declaratory relief action to determine the parties' rights under the Redemption Agreement. Defendant argued the agreement terminated because plaintiff did not provide a written notice of election or concurrently deliver a quitclaim deed. He also filed a cross-complaint, alleging plaintiff breached obligations relating to the company's Operating Agreement and fraudulently induced him to enter the Redemption Agreement.

The matter proceeded to a bench trial. The trial court found the Redemption Agreement was valid, meaning plaintiff had sufficiently elected to proceed; there was no

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evidence of fraudulent inducement; and defendant's Operating Agreement claims were barred by the release provision in Redemption Agreement. The court entered judgment for plaintiff.

On appeal, defendant contends the trial court erred by concluding the Redemption Agreement was valid, rejecting his Operating Agreement and fraudulent inducement claims, and in other respects. We conclude the court's interpretation of the Redemption Agreement was reasonable and supported by the record, and defendant does not establish the court erred by rejecting his claims or otherwise. The judgment is affirmed.

A. Parties and Their Business

Plaintiff and defendant were longtime friends. Plaintiff owns and operates agricultural businesses, including avocado ranches. Defendant works for Caltrans as a materials engineer.

In 2006, the parties purchased an avocado ranch, with each holding an undivided 50 percent interest as tenants in common. They formed a limited liability company, Warren Hills, LLC, to operate it. Under the Operating Agreement, the parties each held a 50 percent membership interest. Two provisions are pertinent here. Section 2.1 states "[n]o Member shall be required to make any additional capital contributions to the Company." Section 3.3 provides that "no Member . . . is entitled to remuneration for services rendered or goods provided to the Company."

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The parties obtained financing. In 2006, they took out a variable rate loan from American AgCredit for nearly $1 million, secured by a lien on the ranch. Later that year, plaintiff converted the loan to fixed rate with a prepayment penalty. In 2009, they obtained a $500,000 loan from the United States Department of Agriculture Farm Service Agency (FSA), secured by a second lien. Plaintiff put up one of his other ranches as collateral for the 2009 loan. In 2013, they applied for further FSA loan assistance. They obtained two $100,000 loans in January 2014.

Challenges ensued. There was a storm in 2006, a deep freeze in 2007, and a fire later in 2007, followed by the recession of 2008. After the fire, they replanted with pomegranate, but the business lost money for several years. Plaintiff wanted to look into loan modification or refinancing, a short sale, or foreclosure, but defendant did not agree. They also tried to sell the ranch in 2013, but did not do so.

B. Redemption Agreement

Plaintiff's real estate attorney, Joseph Delaney of the law firm DLA Piper (DLA), prepared a Redemption Agreement, under which the company would redeem plaintiff's interest and defendant would be the sole owner, effective January 1, 2014. Defendant is identified as the "Continuing Member."

Several provisions are pertinent. Recital C describes the 2006 and 2009 loans, and Recital E explains the business "has been operating at a negative cash flow for several years . . . ." Recital G states "[plaintiff] desires to wind up the Venture and to sell the Land, but [defendant] desires to continue to own the Land and to pursue the Venture." Recital H provides, "The parties desire by this Agreement to set forth in writing terms

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and provisions by which the Company will redeem all of the . . . Membership Interests held by [plaintiff] . . . (the 'Redeemed Interest'), whereupon giving effect to such redemption, [defendant] will become the sole member of the Company." Recital I provides, "Concurrently with the redemption of the Redeemed Interest, [plaintiff] will convey all of [his] interest in the Land to [defendant] by quitclaim deed."

Section 1.1 states that "[a]s of the Closing Date . . . [plaintiff] shall sell, assign and transfer to the Company, and the Company shall acquire from [plaintiff], all of the Redeemed Interest." Section 1.2 states the purchase price for the Redeemed Interest is $100, and this is the "total cash consideration" for such interest.

Section 2.1 provides in relevant part:

"The Company and the Continuing Member covenant to pursue in good faith either a refinance or restructuring of the existing loans from AgCredit and the Government with a Closing Date on or before April 30, 2014 (the 'Refinancing/Restructuring'). . . . [I]f AgCredit and the Government are unwilling or unable to complete . . . Refinancing/Restructuring by April 30, 2014, on terms and conditions acceptable to [plaintiff and defendant], then one of the following shall occur (i) this Agreement shall terminate . . . or (ii) [plaintiff] may nevertheless elect to proceed with the Redemption in which event the transactions contemplated by this Agreement will be consummated without the benefit or requirement of any Refinancing/Restructuring."

Section 5 states the Company and Continuing Member will indemnify plaintiff for any "(i) liability arising out of any personal liability of [plaintiff] of debts or obligations of Company, (ii) liability arising out of any personal liability of [plaintiff] related to, or arising in connection with, either or both of the AgCredit Note and the Government Note, (iii) claims resulting from or relating to Hazardous Materials on or about any properties

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owned by the Company, and (iv) liabilities arising out of the operation or activities of the Company after the Effective Date."

Under the mutual general release in Section 8, each party releases the other party from claims "such party now has or may have against any other party arising directly or indirectly out of (i) such party's ownership of Membership Interests in the Company, (ii) operations and/or business affairs of the company through the Closing Date, or (iii) the dealings between or among the parties with respect to the Company through the Closing Date." The provision contains an express waiver under Civil Code section 1542.

Two other sections are pertinent as well. Section 12 states that "[a]ll notices, requests, claims, demands and other communications provided for or permitted hereunder shall be in writing . . . ." Under Section 19, the "waiver by any party hereto of the performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be considered as a waiver . . . of any other covenant, condition, or promise."

Plaintiff emailed the Redemption Agreement to defendant on January 30, 2014, indicating Delaney prepared it and stating, "please review, sign and forward to me if you have any question let me know [ sic ]." On February 3 and 4, defendant exchanged emails with FSA loan officer Tom Hutton, indicating he wanted to buy plaintiff's portion, assume the loans, and leave plaintiff with "zero ownership." Hutton said the FSA "does not make loans to purchase another person's interest," would not release plaintiff's collateral, and likely would not release him personally. The parties signed the agreement on February 6. Plaintiff indicates he verbally elected to proceed on April 30, which defendant denies.

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C. After the Redemption Agreement

In May 2014, both parties signed an easement for San Diego Gas & Electric (SDG&E). In May and June 2014, defendant exchanged emails with Elizabeth Tucker at the Department of Agriculture regarding government assistance. After defendant told her plaintiff was "not part of Warren Hills" and he "purchased his 50% portion," she requested evidence. On June 1, plaintiff sent defendant a copy of the Redemption Agreement. Defendant sent it to Tucker, stating "please find our redemption agreement (purchase of Mac's 50% share) for our ranch . . . ." She then asked about the quitclaim deed. On June 3, defendant emailed plaintiff, stating, "[Tucker] [is] asking for quitclaim deed . . . would you have quitclaim deed . . . ?" No quitclaim deed was prepared at the time.

On January 29, 2015, plaintiff sent defendant another copy of the agreement, stating "please print and have copy of Redemption Agreement and give[] to [anyone] they have question and you can sign [anywhere] in contract for me because you are purchase my part and legally you are owner of [everything] please let me know if you have any question [ sic ]."

In April 2015, defendant emailed Delaney about picking up the "original copy of [the] redemption." Defendant told him the FSA approved another loan, and asked if he could sign for plaintiff. Delaney said the "Redemption Agreement allow[ed] [him] to sign for Warren Hills," as plaintiff was "no longer [a] member[]." He also said he did not have an original, but said "the parties can re-execute" it. The parties re-signed the agreement, using the original date.

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Also in April 2015, defendant's accountant emailed plaintiff's accountant, stating that as "instructed by" defendant, they "eliminated [plaintiff's] capital" and understood he was no longer involved in the company. The corporate tax forms for 2015 and 2016 reflected Warren Hills was a single member LLC, with defendant as sole owner. In May 2015, defendant requested further loan assistance from the FSA. He indicated he was the 100 percent owner of Warren Hills, and signed under acknowledgment of criminal penalties for providing false statements.

In September 2015, Tucker advised defendant that FSA was requesting the quitclaim deed. Defendant had attorney David Gibbs prepare the quitclaim deed. Defendant sent it to plaintiff on September 15; plaintiff signed it; and defendant recorded it the same day.

In 2015 and 2016, defendant tried to sell the ranch as the sole owner. A 2016 corporate filing for Warren Hills reflected that he was the only manager. By the middle of the year, the loan obligations were in default. Plaintiff again offered suggestions to defendant, including a short sale.

In June 2016, defendant met with Gibbs. Gibbs sent him a letter the next day, stating the Redemption Agreement terminated when he failed to refinance. Delaney maintained the agreement was valid, and he and another attorney retained by defendant, Donald Clinebell, tried and failed to resolve the dispute. In 2017, the ranch was sold in foreclosure.

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In February 2017, Matthew Dart, a DLA litigator, filed this declaratory relief action on plaintiff's behalf regarding the parties' rights under the Redemption Agreement. Defendant filed a cross-complaint with four claims relating to the Operating Agreement (breach of contract, breach of the duty of loyalty, breach of fiduciary duty, and declaratory relief), and a fifth claim for fraudulent inducement as to the Redemption Agreement. Dart later filed a notice of substitution, reflecting he was at his own firm, and defendant retained new counsel too. Plaintiff moved for summary judgment in November 2018, which the trial court denied.

A. Trial

The matter proceeded to a bench trial. The parties' Amended Joint Trial Readiness Conference Report (Joint Trial Report) identified Delaney as a "Percipient/Expert" witness and described him as "[Plaintiff's] real estate lawyer, drafted Redemption Agreement." The court heard testimony from plaintiff, defendant, Delaney, and defendant's real estate agent Charles Smiar. At trial, defendant's counsel asked if he could "recite something from the . . . denial of the summary judgment motion." The court denied the request, explaining "[t]hat doesn't relate to this trial. This is a trial. This is new evidence."

1. Testimony by plaintiff

Plaintiff went into agriculture in the late 1990's as a "hobby and a business," and had owned multiple ranches. He found the ranch that the parties purchased, and was not aware of a 2003 fire in the area. He did not believe Warren Hills was in competition with

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his other ranches, and rather thought they had more buying power and could share employees and equipment.

Addressing the business's operation, plaintiff did not remember whether the company's initial loan required fire insurance or if they had it. He said the decision to replant with pomegranate was "[m]ostly [defendant], but [a] mutual decision." He also said he sent employees to aid with rebuilding, and was involved in managing the ranch through 2014. Plaintiff acknowledged that in 2011, he brought in a loan modification consultant, and recommended a short sale. He knew defendant's wife was diagnosed with stage four brain cancer in 2012.

Plaintiff testified that when he sent defendant the Redemption Agreement, he did not have any questions. When asked why it only described two loans, he said he did not remember if he told Delaney about the others. Plaintiff testified he verbally elected to proceed on April 30, 2014, and there was no writing. As for why he used the Redemption Agreement, instead of dissolving the company or transferring his interest under the Operating Agreement, he testified defendant "didn't want [to] dissolve the company, and [redemption was] the best way to redeem my interest . . . ." He denied defrauding defendant into entering the agreement.

Plaintiff paid taxes on his gains from the sale, and did not make contributions to the business or receive income from it afterwards. He explained he signed the SDG&E easement, because the quitclaim deed was not done yet and to "make it easy for [his] friend . . . ."

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Finally, plaintiff said defendant did not say he believed the Redemption Agreement had terminated when he sent him a copy of the agreement in June 2014, when he sent him another copy in January 2015 and said defendant was the full legal owner, or when they discussed the quitclaim deed in September 2015. Plaintiff said defendant first contacted him in late 2016 or 2017 to say the agreement was not valid.

2. Testimony by defendant

Defendant had worked for Caltrans for over 27 years. He was also involved in a real estate company that sold commercial property at a profit in 2013. Ranching was not a hobby for defendant and he would not have invested with plaintiff if he knew it was for him. Defendant said he did not read the Operating Agreement, and he trusted plaintiff because they were friends. He also said his wife did bookkeeping for the company for several years.

Defendant testified that after the fire, he asked plaintiff about fire insurance, plaintiff said they did not have it, and they were "both . . . really confused." He said it took six to eight months to rebuild, plaintiff said he was too busy to help, and plaintiff then failed to help with management from 2008 to 2009 and replanting from 2010 to 2013. He also said it was plaintiff who recommended pomegranate. Defendant explained that after his wife was diagnosed in November 2012, he was not interested in continuing the venture. He stated plaintiff did not cooperate in listing the property, and rejected an offer in 2013 because he wanted a higher price.

Defendant did not read the Redemption Agreement, explaining his wife was sick, she needed his care, and he was seeing a psychologist. When asked if plaintiff talked to

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him about the agreement, he said plaintiff told him, "This is my attorney, Mr. Delaney. He prepared -- and this is just a formality." He acknowledged plaintiff sent the agreement with instructions (i.e., to review, sign, and let him know if had questions), and confirmed he did not review it or ask questions. He also testified he did not understand the terms. He was aware of the April 30 closing date, but said plaintiff told him about it and indicated if they did not do anything, "it will expire." Defendant denied plaintiff informed him about his election on April 30, and testified he knew at the time the agreement was terminated.

Defendant acknowledged that after the Redemption Agreement, plaintiff did not involve himself with the ranch or make any contributions. He also admitted he filed taxes in his name only, but stated plaintiff told him to do so. He did not read the Redemption Agreement when plaintiff forwarded it in June 2014 or January 2015, and did not tell Delaney he thought it was invalid when they exchanged emails in April 2015. He initially stated he told plaintiff in January 2015 that it was invalid, but then said he did not remember; at deposition, he had denied doing so.

Defendant also addressed other post-agreement events. He paid off one of the January 2014 FSA loans in 2015. He talked to plaintiff about signing another FSA loan and said plaintiff indicated he was willing to do so, but then told him he had to finish another refinancing and the loan was denied. Regarding his statement in the 2015 loan request that he was the sole owner, defendant testified he said this because plaintiff directed him that he was the legal owner. At deposition, he had indicated the statement was false and he was desperate. As for the quitclaim deed, defendant said he obtained it

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so he could list the property on his own and borrow money. He explained he did not think he would be the full owner without it, because everyone was saying, "where is the quitclaim deed . . . ." He also stated that when plaintiff did not provide the quitclaim deed in June 2014 (i.e. after defendant's email), his impression was that maybe they were staying "50/50" partners.

Finally, defendant testified that Gibbs's June 2016 letter indicating the Redemption Agreement had terminated followed a meeting between them the prior day, and reflected his "understanding [of] what [Gibbs] told [him]" about the agreement. He agreed this was the "first time . . . [he] understood that the Redemption Agreement was invalid."

3. Testimony by Other Witnesses

Delaney testified that he was plaintiff's real estate transactional attorney. He addressed a 2011 meeting he had with plaintiff and defendant to discuss the prepayment penalty on the first loan. When asked if he told defendant he did not represent him or the company and only represented plaintiff, Delaney said he "might well have," it would be a "very typical opening" to a meeting, and he was "clearly [plaintiff's] lawyer," but he had nothing in writing. During the meeting, he "got the impression that [defendant] was more enthusiastic about pomegranates than [plaintiff] . . . ."

Addressing the Redemption Agreement, Delaney said he would have included the additional loans if he had been aware of them. For the quitclaim deed, he did not intend a lack of concurrent conveyance to be fatal, and explained that between redemption and when the quitclaim deed was provided, defendant would be the beneficial owner. He viewed the consideration to be the indemnification and general release, and said it was in

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plaintiff's discretion to waive the nominal $100 amount. He did not build in any "particular form of election . . . ."

Delaney acknowledged plaintiff's interest could have been transferred under the Operating Agreement, but indicated he used the Redemption Agreement because, among other reasons, the tax attorney he worked with preferred it and it enabled the company to stay in effect. He explained that if plaintiff sold his interest under the Operating Agreement, he "would have still required that [defendant] assume the debt and indemnify him" and it would not "make any difference to the underlying economic deal . . . ."

Finally, real estate agent Charles Smiar testified that defendant attempted to sell the ranch in 2015 and 2016, but was unable to do so.

B. Statement of Decision

In August 2018, the trial court issued a tentative decision for plaintiff. Defendant filed a request for statement of decision (later amended), which listed 74 purported "principal [ sic ] controverted issues."

The trial court issued its final statement of decision in September 2018. It first addressed the parties' business and the terms of their agreements, including that "[n]o time or form of election of the redemption was specified" in the Redemption Agreement and that it stated it superseded prior agreements.

The court then addressed the evidence at trial. It found that after the Redemption Agreement, "defendant held himself out as the sole owner . . . ." It noted he sent email indicating he purchased plaintiff's interest and was the 100 percent owner; he received at least two copies of the Redemption Agreement, and "had ample time to review them but

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never questioned" them; he "re-executed the agreement in 2015"; he "had his lawyer prepare the quitclaim deed and recorded it"; and he filed tax returns and attempted to sell the ranch as sole owner. The court found defendant's "actions for more than two years were in accordance with the terms of the agreement and evidenced his understanding of its terms." It acknowledged defendant testified he "did not read the documents since he trusted his long-term friend," but found he was a highly educated engineer, had been employed as such for years, and had real estate experience. The court found "[d]efendant's background as well as his actions in conformity with both the earlier and later agreements belie his claim that he did not know or understand their terms."

The trial court also rejected defendant's claim that the Redemption Agreement was not valid because the quitclaim deed was not executed at the time. It found "there was no time attached to that recital and one was later signed and recorded." The court further found "[t]here was consideration on both sides-plaintiff gave up all interest in the . . . ranch in exchange for defendant's agreement for indemnification from all liability on the existing property loans." The court then summarized its conclusions:

"In regard to the cross-complaint, at least the first four claims relate to terms of the earlier Operating Agreement. However, per the Redemption Agreement, there was a general mutual release between the parties and a section 1542 waiver. The fifth claim-fraud in the inducement-alleges defendant was defrauded to enter into the Redemption Agreement.

"The Court has carefully reviewed the evidence, and based on it and in particular upon the above, finds for plaintiff on the complaint and declares the Redemption Agreement is valid and binding so that defendant must indemnify plaintiff against any liability related to the existing loans on the land. In regard to the cross-complaint, even if the Redemption Agreement were invalid, the Court finds defendant's

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claimed damages for services and contributions are barred under the Operating Agreement. (Ex. 2, sec. 2.1 and 3.3) Additionally, there was no evidence plaintiff falsely represented any material fact to defendant to induce him to sign either agreement."

Finally, the court explained its statement "covers the factual and legal basis of [its] decision on the principal issues contested at trial," it was "not required to provide minute findings on individual items of evidence," and it was not responding to defendant's "74 interrogatories . . . ." Defendant filed objections.

The trial court entered judgment on October 4, 2018. The judgment stated the Redemption Agreement is "valid and binding," and defendant "must indemnify [plaintiff] against any liability related to the loans on the Land as defined in the Redemption Agreement." It further stated defendant took nothing by the cross-complaint. Defendant timely appealed on December 3, 2018.

A. Legal Principles

"Code of Civil Procedure section 1060 confers standing upon '[a]ny person interested under a . . . contract' to bring an action for declaratory relief 'in cases of actual controversy relating to the legal rights and duties of the respective parties.' " ( Application Group v . Hunter Group (1998) 61 Cal.App.4th 881, 892.) Section 1060 "does not require

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a breach of contract in order to obtain declaratory relief, only an 'actual controversy.' Declaratory relief pursuant to this section has frequently been used as a means of settling controversies between parties to a contract regarding the nature of their contractual rights and obligations." ( Meyer v . Sprint Spectrum L . P . (2009) 45 Cal.4th 634, 647; see Rimington v . General Acci . Group of Ins . Cos . (1962) 205 Cal.App.2d 394, 397 [purpose of declaratory judgment is to "settle actual controversies before they have ripened into a violation of a contractual obligation"].)

Determination of the parties' rights under the Redemption Agreement is an issue of contract interpretation. "The goal of contractual interpretation is to determine and give effect to the mutual intention of the parties." ( Safeco Ins . Co . v . Robert S . (2001) 26 Cal.4th 758, 763.) " '[T]he mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. ( Id ., § 1639.) The "clear and explicit" meaning of these provisions, interpreted in their "ordinary and popular sense," unless "used by the parties in a technical sense or a special meaning is given to them by usage" [citation], controls judicial interpretation.' " ( Santisas v . Goodin (1998) 17 Cal.4th 599, 608.)

" 'A [contract] provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable.' " ( EFund Capital Partners v . Pless (2007) 150 Cal.App.4th 1311, 1321.) " 'When there is ambiguity in the contract language, extrinsic evidence may be considered to ascertain a meaning to which the instrument's language is reasonably susceptible.' " ( ASP Properties Group , L . P . v . Fard ,

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Inc . (2005) 133 Cal.App.4th 1257, 1266.) " 'A party's conduct occurring between the execution of the contract and a dispute about the meaning of the contract's terms may reveal what the parties understood those terms to mean.' " ( Banning Ranch Conservancy v . Superior Court (2011) 193 Cal.App.4th 903, 915 ( Banning Ranch ).) The court may also consider the "circumstances surrounding formation of the agreement[]." ( Southern Pacific Transp . Co . v . Santa Fe Pacific Pipelines , Inc . (1999) 74 Cal.App.4th 1232, 1243 ( Southern Pacific ).)

B. Standard of Review

"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 ( Thompson ).) Further, "[u]nder the doctrine of implied findings, the reviewing court must infer, following a bench trial, that the trial court impliedly made

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every factual finding necessary to support its decision." ( Fladeboe v . American Isuzu Motors Inc . (2007) 150 Cal.App.4th 42, 48; but see Code Civ. Proc., § 634 [identification of ambiguities or omissions in statement of decision limits implied findings].) Only prejudicial error is grounds for reversal. ( Soule v . General Motors Corp . (1994) 8 Cal.4th 548, 580.)

" 'The ultimate construction placed on the contract might call for different standards of review. 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.' " ( Reilly v . Inquest Technology , Inc . (2013) 218 Cal.App.4th 536, 554.)

The parties disagree as to whether de novo or substantial evidence review applies here. As our analysis will reflect, most issues here involve conflicting extrinsic evidence on ambiguous contract terms, or otherwise involve questions of fact, and we apply substantial evidence review unless noted.

Before we proceed to defendant's arguments, we address issues with his briefing and the impact on our review.

First, defendant's factual summary is substantially one-sided and argumentative, and lacks citations for many assertions. ( In re S . C . (2006) 138 Cal.App.4th 396, 402 ["appellant must fairly set forth all the significant facts, not just those beneficial to the

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appellant"]; Cal. Rules of Court, rule 8.204(a)(2)(C) [opening brief must provide summary of "significant facts limited to matters in the record"]; Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must support record references with citations].) Defendant also cites trial court briefing, which is not evidence. ( In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 591 ["A trial brief is not evidence, it is argument"].) We need not consider matters unsupported by evidence or lacking proper citations. ( Rybolt v . Riley (2018) 20 Cal.App.5th 864, 868 [appellate courts may " 'disregard any factual contention not supported by a proper citation' "].)

Second, defendant's arguments are repetitive and not confined to particular sections. (Cal. Rules of Court, rule 8.204(a)(1)(B) [briefs must "[s]tate each point under a separate heading or subheading summarizing the point"].) We address the arguments, but only do so once and not always in the order presented. ( Provost v . Regents of University of California (2011) 201 Cal.App.4th 1289, 1294-1295 ["[W]e do not consider all of the loose and disparate arguments. . . . [O]nce we have discussed and disposed of an issue it will not necessarily be considered again"].)

Third, defendant raises some points without argument or authority, or for the first time on reply. We do not consider them. (See Badie v . Bank of America (1998) 67 Cal.App.4th 779, 784-785 ( Badie ) ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"]; American Drug Stores , Inc . v . Stroh (1992) 10 Cal.App.4th 1446, 1453 ( Stroh ) ["Points raised for the first time in a reply brief will ordinarily not be considered"].)

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Finally, defendant frames the trial court's purported errors in terms of the court ignoring issues or there being substantial evidence for findings the court did not make—but does not contend there is a lack of substantial evidence to support the findings the court did make. As noted ante , most issues here implicate substantial evidence review, and his failure to raise a proper challenge is fatal to much of his appeal. ( Badie , supra , 67 Cal.App.4th at pp. 784-785.)

Defendant argues the "trial court erred when it refused to address the 74 controverted issues" in his Request for Statement of Decision, as well as issues in the Joint Trial Report. We disagree.

"[U]nder [Code of Civil Procedure] section 634, if a 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.' " ( Thompson , supra , 6 Cal.App.5th at p. 981.) However, " '[t]he trial court is not required to respond point by point to the issues posed in a request for statement of decision. The

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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.' " ( Id . at p. 983.)

The trial court's statement of decision was sufficient. The court resolved the controverted issues, including finding the Redemption Agreement was valid, as evidenced by defendant's post-agreement conduct and notwithstanding late recording of the quitclaim deed; there was no evidence of fraudulent inducement; and defendant's Operating Agreement claims were released under the Redemption Agreement. The court properly declined to address defendant's 74 issues. ( Thompson , supra , 6 Cal.App.5th at p. 981; People v . Casa Blanca Convalescent Homes , Inc . (1984) 159 Cal.App.3d 509, 525 [request for statement of decision improper where it would require court to answer "over 75 questions"], disapproved on other grounds in Cel-Tech Comms . Inc . v . Los Angeles Cellular Tel . Co . (1999) 20 Cal.4th 163, 184-185.)

Defendant contends the trial court erred in interpreting the Redemption Agreement. We disagree.

A. Election To Proceed

We begin with the election to proceed. Section 2.1 of the Redemption Agreement states that if no refinancing was completed by April 30, 2014, then "one of the following shall occur: (i) this Agreement shall terminate . . . or (ii) [plaintiff] may nevertheless elect to proceed with the Redemption in which event the transactions contemplated by this Agreement will be consummated . . . ." Defendant contends this provision required plaintiff, not him, to "make the election"; it required plaintiff to do so by April 30, 2014;

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and section 12 required the election to be in writing. Plaintiff maintains he did make the election, he did so verbally on April 30, 2014, and the election did not have to be in writing.

Defendant's first two contentions are not at issue. The Redemption Agreement states it is plaintiff who may elect to proceed, plaintiff does not argue otherwise, and the trial court did not find otherwise. The court did properly consider defendant's post-agreement conduct in assessing his understanding of its terms. ( Banning Ranch , supra , 193 Cal.App.4th at p. 915.) Defendant appears to misconstrue the court's consideration of this conduct as a finding that defendant made the election. Defendant also contends plaintiff was required to make his election by the closing date, April 30, 2014, and the trial court erred in finding there was no time specified for the election. Plaintiff testified he made a verbal election on April 30, 2014, which defendant denied. On this record, plaintiff either made a timely election, or made no election at all, and we need not address whether a later election would have been sufficient.

We now turn to the disputed issue: whether written notice was required, or if plaintiff's verbal election was enough. We construe the trial court's finding that "[n]o . . . form of election . . . was specified" as a finding that the term is ambiguous, and we agree.

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Interpreting the term to allow for verbal notice is reasonable, as Section 2.1 does not state notice is required at all, much less the form it must take; it just provides plaintiff "may . . . elect to proceed . . . ." Further, Section 12 lists items that shall be in writing, but does not include elections. (§ 12 ["[a]ll notices, requests, claims, demands, and other communications"].) However, it is also reasonable to interpret Section 2.1 as entailing notice, such that defendant would know whether plaintiff was proceeding, and to interpret Section 12 as encompassing an election as a kind of notice.

Given the ambiguity, the trial court properly considered extrinsic evidence and concluded the Redemption Agreement was valid and binding, meaning it impliedly found plaintiff's verbal election was sufficient (or that any written notice requirement had been waived). Substantial evidence supports this conclusion.

Defendant was unable to refinance, but plaintiff testified he verbally notified defendant on April 30, 2014 that he was electing to proceed. Defendant then acted as sole owner of the business for at least two years, including in filing taxes, communicating about loans, and listing the property. He received copies of the Redemption Agreement from plaintiff in June 2014 and January 2015, but did not tell him until at least 2016 that he believed the agreement was invalid (presumably after attorney Gibbs told him the agreement had terminated). Defendant also re-signed the agreement and procured the quitclaim deed in 2015, matters we discuss in more detail post . Meanwhile, plaintiff's conduct was consistent with no longer being an owner, and he explained he only signed the SDG&E easement to help defendant.

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We recognize defendant testified he trusted plaintiff and did not read the Redemption Agreement, took at least some post-agreement actions because plaintiff directed him to, and had doubts about the agreement's effectiveness based on the requests for the quitclaim deed. But the trial court rejected defendant's testimony as inconsistent with his education, experience, and conduct, and we will not reweigh that assessment. ( Do v . Regents of the University of California (2013) 216 Cal.App.4th 1474, 1492 ( Do ) [We also do not " 'weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence' "].) We note the court could also have rejected at least some of this testimony on relevance grounds. ( PV Little Italy , LLC v . MetroWork Condominium Assn . (2012) 210 Cal.App.4th 132, 157 ( PV Little Italy ) ["subjective statements of 'understanding' are irrelevant . . . , particularly where there is no evidence that [the other party] had the same understanding"]; Cline v . Homuth (2015) 235 Cal.App.4th 699, 712 [evidence of undisclosed subjective intent was insufficient to establish party intent].)

As noted ante , defendant has forfeited any substantial evidence challenge. To the extent the preceding analysis does not address his arguments here, we elect to do so now and conclude they lack merit.

First, defendant contends the trial court erred when it accepted plaintiff's testimony at trial that he gave verbal notice, and overlooked both plaintiff's deposition statement that he had not given written notice and defendant's testimony that he never received the verbal notice. He does not establish error. "The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions." (In re Frederick G . (1979) 96 Cal.App.3d 353, 366.) We

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will not reweigh the evidence ( Do , supra , 216 Cal.App.4th at p. 1492), and simply note plaintiff's testimony does not appear inconsistent. He testified at deposition that he did not provide a written notice, confirmed this at trial, and further testified at trial that he made a verbal election.

Second, defendant disputes he could have waived his purported right to written notice. He argues the Redemption Agreement has a waiver clause, he never "expressly 'waived' " conditions, and his conduct could not waive plaintiff's duties. This argument lacks merit.

"[P]arties may, by their words or conduct, waive contractual rights." ( Wind Dancer Production Group v . Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78 ( Wind Dancer ).) " ' "The waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right." ' " ( Ibid . [waiver will be found where " ' "party's acts are so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished." ' "].) Even if defendant had some right to a written notice of election, one could reasonably construe his post-agreement conduct as an implied waiver of such right. That conduct was consistent with the Redemption Agreement remaining in effect, not with enforcing a writing requirement that would result in its termination. ( Ibid .; cf. McAulay v . Jones (1952) 110 Cal.App.2d 302, 307 [affirming judgment for tenant that lease was extended;

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there was "acceptance by conduct," the "right to have the acceptance in writing" was for his benefit, and he could waive it].) No express waiver was required. ( Wind Dancer , at p. 78.)

Defendant's reliance on the Redemption Agreement's waiver provision, Section 19, is misplaced. It states that "waiver. . . of the performance of any . . . condition . . . shall not invalidate this Agreement, nor shall it be considered as a waiver . . . of any other . . . condition . . . ." This provision is straightforward: if a party waives a condition, it does not result in a waiver of other provisions or the agreement as a whole. It places no limit on implied waiver.

Third, defendant argues there is " 'substantial evidence' that the Plaintiff failed to make the 'election[,]' " which the trial court overlooked. Setting aside his misapplication of substantial evidence review, he does not establish the trial court ignored anything. He focuses on the delayed quitclaim deed, which he contends means he was not a 100 percent owner, and plaintiff's signing of the SDG&E easement. The court did address the quitclaim deed, which we discuss post . As for the easement, we presume the trial court considered it. The court could still properly conclude the parties' post-agreement conduct was consistent with plaintiff having made the election and the Redemption Agreement being valid.

Finally, defendant contends the trial court erred by not allowing him to address the summary judgment ruling at trial, which he argues "prevented the points of law to be presented at trial" and prejudiced his case. The trial court properly declined to allow defendant to introduce the summary judgment ruling, as it had no bearing on the trial.

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Defendant also cannot establish prejudice, as he remained free to make legal arguments to the court consistent with the summary judgment ruling.

B. Quitclaim Deed

We now turn to the quitclaim deed. Recital I of the Redemption Agreement provides that "[c]oncurrently with the redemption of the Redeemed Interest, [plaintiff] will convey all of [his] interest in the Land to [defendant] by quitclaim deed." Defendant contends concurrent delivery should have been construed as a condition precedent, and the trial court erred by determining it was acceptable for the quitclaim to be delivered later. Plaintiff disagrees the provision was a condition precedent, and argues that even if it were, it was satisfied and strict performance was waived by Defendant's conduct.

The quitclaim deed recital is ambiguous, though not for the reason suggested by the trial court. The court rejected defendant's argument that the deed was not executed at the time of agreement, finding "there was no time attached to . . . recital" (and then further finding that "one was later signed and recorded"). But the term "concurrently" in

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the recital does identify a time. Thus, the ambiguity is not whether a time existed, but whether the parties intended concurrent conveyance to be a condition of performance. However, the court's error was harmless, as both the agreement text and the record support its conclusion that late conveyance was sufficient.

"An obligation is conditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event." (Civ. Code, § 1434.) "A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed." (Civ. Code, § 1436.) " '[C]onditions precedent are not favored in the law [citations], and courts shall not construe a term of the contract so as to establish a condition precedent absent plain and unambiguous contract language to that effect.' " ( Colaco v . Cavotec SA (2018) 25 Cal.App.5th 1172, 1183.) Such language includes terms like "subject to" or "conditioned on." ( In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1181 ( Hasso ).)

Here, the quitclaim deed recital does not state the redemption is "subject to" or "conditioned on" concurrent conveyance, and substantial evidence reflects the parties did not intend it to be necessary. As discussed ante , both parties acted as if the Redemption Agreement was in effect, both before the quitclaim deed was recorded in September 2015

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and afterwards. Defendant's June 3, 2014 email asking plaintiff if he had the quitclaim deed reflects he believed the agreement was still in effect, not the opposite. And it was defendant who ultimately prepared and recorded the quitclaim deed—again reflecting his belief that the agreement was in effect, and also meaning conveyance of the deed was complete. (See Hasso , supra , 229 Cal.App.3d at p. 1181 [notwithstanding signature lines for approval as to form, attorney approval was not condition precedent; no agreement language supported that construction, and extrinsic evidence was to the contrary].) Even if concurrent conveyance were a condition, this evidence would support the conclusion that defendant waived it. ( Galdjie v . Darwish (2003) 113 Cal.App.4th 1331, 1339 ["Like any other contractual terms, timeliness provisions are subject to waiver by the party for whose benefit they are made"].) The trial court could also accord little weight to defendant's testimony that he had doubts about the agreement's effectiveness due to the absence of the quitclaim deed. ( PV Little Italy , supra , 210 Cal.App.4th at p. 157.)

Defendant's arguments are unavailing. First, he contends the trial court ignored that concurrent delivery of the quitclaim deed was a condition precedent. The court did address the quitclaim deed, its error in overlooking the term "concurrent" was harmless, and substantial evidence reflects concurrent conveyance was not a condition of performance. Defendant does not allege or establish a lack of substantial evidence, and the authorities he cites simply set forth general principles that do not compel a different result. (See, e.g., 1 Witkin, Summary of Cal. Law (11th ed. 2019) Contracts § 799 [describing conditions precedent and conditions subsequent]; Consolidated World Investments , Inc . v . Lido Preferred Ltd . (1992) 9 Cal.App.4th 373, 380 [where "duty to

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perform . . . is conditioned on the happening of some event, the [other party] must prove the event transpired"].)

Second, defendant contends a "transfer of property requires that title be conveyed," citing Civil Code section 1039, and by "not delivering the quitclaim deed, [plaintiff] was legally the 50 percent owner of the Ranch." Conveyance of the quitclaim deed may have been necessary to complete the legal transfer of the ranch to defendant (and was later completed). But defendant does not explain how this bears on the question here: whether the parties intended to require concurrent conveyance. The record reflects they either intended no such requirement or defendant waived it.

Finally, defendant contends the quitclaim deed was delivered by defendant to plaintiff in September 2015, after Gibbs "advised the Defendant that the Redemption Agreement was terminated," citing "Gibbs Letter, Exhibits 37, 119." We question both the timing and significance of these events. Defendant cites copies of Gibbs's June 2016 letter (only one of which, Exhibit 119, was admitted at trial). The letter does not state Gibbs told defendant anything in 2015, and defendant confirmed their communications in June 2016 were the "first time" he understood the agreement was invalid. Further, he does not explain his point. If he means preparation of the quitclaim deed by him, rather than plaintiff, was problematic, he does not explain why. The recital states plaintiff will convey his interest via quitclaim deed; it does not specify who has to prepare it. If defendant means preparation by him was evidence he knew the agreement had terminated, we disagree. Indeed, it reflects the opposite: that he believed the agreement remained in effect. His explanation—he wanted to list the property, and plaintiff refused

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to help—reflects him seeking to act as sole owner, which is again consistent with the agreement being in effect.

C. Re-signing of the Redemption Agreement

Finally, we reject defendant's contention that the trial court "erred when it considered the re-signing of the Redemption Agreement as 'Re-execution' of the said agreement." The parties' re-signing of the agreement was further evidence that defendant believed it was in effect and he was sole owner. The court properly considered it for this purpose, and viewed in context, its use of the term "re-execut[ion]" just meant "re-signing." Defendant does not show otherwise.

First, he contends the re-signing was not a "re-execut[ion]," because it was meant to replace the lost original copy, material terms were not updated to current terms, and it had no legal effect and could not revive the terminated agreement. He cites no authority for what constitutes re-execution, but regardless, the trial court simply meant re-signing. Further, there is no dispute the re-signing had no legal effect, and because the agreement had not terminated, there was nothing to revive.

Second, defendant suggests plaintiff was confused about when the re-signing took place, arguing he alleged at summary judgment that it took place in July 2015 and "at trial this date moved to April 2015." Even assuming he did not remember exactly when

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this took place, we fail to see the relevance. There is no dispute the re-signing occurred, and the specific date is not material.

In sum, defendant does not establish any error by the trial court in finding that the Redemption Agreement was valid and binding. We now turn to his other arguments.

Defendant contends the trial court erred by ignoring issues as to Delaney, the fraudulent inducement claim, and the Operating Agreement claims. He also raises issues regarding attorneys' fees. None of this has merit.

A. Delaney and Redacted Exhibits

Defendant asserts the trial court did not address issues concerning Delaney's alleged conflict of interest; his testimony as an expert while allegedly concealing his role as co-trial counsel (which defendant claims he learned about during attorneys' fee proceedings); and redacted exhibits reflecting communications with him. Defendant does not establish any error here.

1. Legal Principles

"[W]e apply a deferential abuse of discretion standard to any contested evidentiary rulings . . . ." ( Evans v . Gordon (2019) 41 Cal.App.5th 1094, 1102.) To preserve an evidentiary issue for appeal, appellant must timely object, identify the error, and establish

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that it was prejudicial. (Evid. Code, § 353, subd. (a) [no judgment shall be set aside based on admission of evidence, unless there was a timely and specific objection and the reviewing court determines the error resulted in a "miscarriage of justice"]; Crouch v . Trinity Christian Center of Santa Ana , Inc . (2019) 39 Cal.App.5th 995, 1020 ( Crouch ) ["failure to object or move to strike evidence at trial forfeits any challenge to the evidence on appeal"]; Shaw v . County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 ( Shaw ) [appellants "fail to point to any place in the record where they successfully preserved their evidentiary claims of error"].)

Expert testimony may be admissible as to industry custom and usage. (See Wolf v . Superior Court (2004) 114 Cal.App.4th 1343, 1357 ( Wolf ) [expert testimony on industry custom and usage of term "gross receipts" revealed ambiguity in contract].) Expert testimony on the meaning of contractual language is generally irrelevant. ( Industrial Indemnity Co . v . Apple Computer , Inc . (1999) 79 Cal.App.4th 817, 835, fn. 4 ( Industrial Indemnity ) [" '[t]he opinion of an . . . expert as to the meaning of the [contract] is irrelevant to the court's task of interpreting the [contract]' "]; In re Tobacco Cases I (2010) 186 Cal.App.4th 42, 51 ( Tobacco Cases ) ["interpretation of contractual language is a legal matter for the court . . . and '[e]xpert opinion on contract interpretation is usually inadmissible.' "].)

2. Defendant's Failure to Object

Defendant has forfeited any arguments regarding Delaney's testimony or redacted exhibits, by failing to timely object at trial. He suggests he could not have done so, because he was unaware of Delaney's purportedly concealed role as co-trial counsel. We

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are not convinced. He knew or should have known that Delaney was plaintiff's attorney, if not his specific alleged role; knew he was offering what defendant viewed as expert testimony for plaintiff; and knew he found the testimony objectionable. Thus, defendant could have objected at trial, and his failure to establish he made such objections means he forfeited them. ( Crouch , supra , 39 Cal.App.5th at p. 1020; Shaw , supra , 170 Cal.App.4th at p. 282.) Nonetheless, we elect to address defendant's arguments, in certain cases addressing their merits and in others elaborating on why he forfeited them.

3. Delaney's Alleged Conflict of Interest

Defendant begins by arguing the trial court failed to address Delaney's conflict of interest, explaining that when he received the Redemption Agreement, he "thought Delaney was his attorney as well because of the actions of Delaney and DLA" in working with Warren Hills and he "had no reason to be concerned about the Redemption Agreement in light of the fact that it was drafted by two people he . . . trusted at the time."

Defendant does not explain how the court erred in addressing this issue, or how it relates to his concerns about Delaney's testimony and the redacted exhibits. He forfeits the point. ( Badie , supra , 67 Cal.App.4th at pp. 784-785.) We elect to clarify the record, as it casts doubt on defendant's claim about how he viewed Delaney. Plaintiff sent defendant the Redemption Agreement as prepared by Delaney, reflecting it was plaintiff who had the relationship with Delaney. And when defendant was asked whether plaintiff talked to him about the Redemption Agreement, he said plaintiff told him, "This is my attorney, Mr. Delaney. He prepared -- and this is just a formality." We reject defendant's

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claim that he had a "perception of trust" based on the parties' 2011 meeting with Delaney, or that Delaney testified that "at no time" did he tell defendant he did not represent him. Delaney testified that at the 2011 meeting, he "might well have" told defendant he did not represent him and only represented plaintiff, this "would be a very typical opening to a meeting," and he was "clearly [plaintiff's] lawyer."

4. Delaney's Testimony

Next, Defendant argues that Delaney improperly testified as an expert witness for plaintiff, without declaring himself as trial co-counsel; defendant discovered this when Delaney purportedly claimed co-counsel attorneys' fees and he raised the issue at the November 30, 2018 attorneys' fee hearing; and the trial court erroneously failed to address whether Delaney's testimony prejudiced him.

There are two preliminary issues. The fee-related materials that defendant seeks to rely upon post-date the judgment and we generally do not consider such matters. (See Vons Companies , Inc . v . Seabest Foods , Inc . (1996) 14 Cal.4th 434, 444, fn. 3 [" '[W]hen reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.' "].) We take judicial notice of certain documents, solely to clarify the record in addressing defendant's arguments here. (Evid. Code, §§ 452, subd. (d), 459.) Further, the fee hearing was not

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reported, and defendant identifies no adequate substitute (such as a settled statement). He is thus unable to establish he raised the Delaney issue at the fee hearing or that the trial court failed to address it. (See Ballard v . Uribe (1986) 41 Cal.3d 564, 574 ["[A] party challenging a judgment has the burden of showing reversible error by an adequate record"]; Vo v . Las Virgenes Municipal Water Dist . (2000) 79 Cal.App.4th 440, 445-447 [affirming fee award, where record was inadequate to conclude trial court abused its discretion].)

Turning to defendant's arguments, they would fail if we reached them.

First, defendant contends plaintiff removed DLA as counsel at the outset of the litigation, citing the notice of substitution for Dart's law firm; "Delaney was never declared at trial as a co-counsel"; and "this fact remained concealed from [defendant] throughout this case . . . ." Defendant does not establish Delaney was trial co-counsel or that there was any concealment.

While Dart became plaintiff's litigation counsel, Delaney remained his real estate attorney—as he indicated at the outset of his testimony. His only role at trial was to provide that testimony. Contrary to defendant's suggestion, plaintiff's motion for attorneys' fees did not establish Delaney was covertly acting as trial counsel. It did state that "[t]hroughout this dispute and litigation, [plaintiff] [has] been represented by DLA [], later co-counseling with Dart Law." But Delaney explained this representation in his declaration for the motion, stating that after turning the matter over to Dart, he "continued to advise him with respect to certain issues" and periodically reviewed court filings and documents. He did not say he was co-counsel at trial, and he noted he did not include

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time entries for "testimony-related time, neither preparation nor actual testimony . . . ." Dart confirmed in his declaration that he "served as [p]laintiffs' sole counsel at the week-long trial."

Further, defendant does not address the legal significance of Delaney's alleged role. Plaintiff suggests he is relying on the witness-advocate rule, and contends it is inapposite. (See Kennedy v . Eldridge (2011) 201 Cal.App.4th 1197, 1208-1209 [witness-advocate rule bars "attorney from acting both as an advocate and a witness in the same proceeding," subject to certain exceptions].) We need not address an argument that defendant has not articulated (and his cursory reference to the witness-advocate rule on reply does not qualify).

Second, defendant contends Delaney "rendered various questionable if not misleading and false 'legal opinions' " regarding various terms of the Redemption Agreement. He argues Delaney was "clearly motivated not only to promote the Plaintiff's case but also benefit himself monetarily by collecting attorney fees and costs . . . ." None of this has merit. Defendant's disagreement with Delaney's opinions does not render them false (even if their relevance may be limited), and we decline to consider his speculation about Delaney's motives.

Finally, defendant does not establish prejudice. The trial court did not refer to Delaney in addressing the agreement terms. This was appropriate, because his only pertinent testimony would have concerned the circumstances that led to the Redemption Agreement and potentially custom and usage. ( Southern Pacific , supra , 74 Cal.App.4th at p. 1243; Wolf , supra , 114 Cal.App.4th at p. 1357.) His testimony on the meaning of

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the terms would not have been relevant. ( Industrial Indemnity , supra , 79 Cal.App.4th at p. 835, fn. 4; Tobacco Cases , supra , 186 Cal.App.4th at p. 51.) Further, we did not consider any such testimony, and still concluded that substantial evidence supports the trial court's interpretation of the Redemption Agreement.

5. Redacted Exhibits

Defendant contends that "all redacted communications presented as exhibits or otherwise between Delaney and plaintiff and his trial counsel" should be available to him. He also claims entitlement to all redacted communications produced in discovery. These arguments have no merit.

First, defendant contends Delaney was plaintiff's expert and communications with testifying experts lose attorney-client privilege when the expert states an opinion, citing Shooker v . Superior Court (2003) 111 Cal.App.4th 923. But plaintiff maintains Delaney was a jointly designated percipient/expert witness, not a retained expert witness, which is consistent with the parties' Joint Trial Report. Further, defendant should have known Delaney was plaintiff's attorney, and offering what he viewed as expert testimony on his behalf. He waived any objections to exhibit redactions involving Delaney by not making them at the time. ( Crouch , supra , 39 Cal.App.5th at p. 1020; Shaw , supra , 170 Cal.App.4th at p. 282.)

Second, defendant contends he is entitled to the redacted exhibits under Evidence Code section 912, subdivision (a). This statute provides that certain privileges, including attorney-client privilege, are "waived . . . if any holder of the privilege . . . has disclosed a significant part of the communication or has consented to disclosure made by anyone."

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According to defendant, if Delaney's role as trial co-counsel had been disclosed, then "Evidence Code section 912(a) would have . . . applied and all those 'privileged' communications would have been presented to the court . . . ." But, again, defendant should have known Delaney was plaintiff's lawyer, in some capacity. If he thought his testimony was disclosing privileged matters and Evidence Code section 912 applied, he should have raised the issue then, as well as any objections to the redacted exhibits. Defendant also does not explain how Delaney testified about privileged matters or had plaintiff's consent to do so.

Finally, we reject defendant's request for all redacted communications between "Delaney and plaintiff and his trial counsel," including during discovery. He provides no argument or authority for this request, and it has no merit whatsoever.

B. Fraudulent Inducement

Defendant contends the trial court "overlooked the 'substantial evidence' of . . . 'fraudulent inducement' . . . " He again misapplies substantial evidence review, and cannot establish error. Even if we were to construe his argument as challenging the trial court's conclusion, we would reject it.

" 'The elements of fraud . . . are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.' " ( Lazar v . Superior Court (1996) 12 Cal.4th 631, 638; ibid . ["[a]n action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract"]; see Civ. Code, § 1572 [fraudulent acts include the "suggestion, as a fact" of

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something untrue, by "one who does not believe it to be true"; the "positive assertion" of an untrue fact; and the suppression of a true fact].)

The trial court determined "there was no evidence plaintiff falsely represented any material fact to defendant to induce him" to enter the Redemption Agreement. Substantial evidence supports this finding. The business had lost money for some time; defendant had rejected plaintiff's suggestions, including a short sale; and plaintiff no longer wanted to be involved. These facts were set forth in the Redemption Agreement. The agreement also indicated defendant would become sole owner of the company and land, and plaintiff would be released and indemnified from company obligations. When plaintiff emailed the agreement to defendant, he told him Delaney prepared it and asked defendant to "review, sign and forward to me if you have any question let me know [ sic ]." None of this reflects any misrepresentations or omissions by plaintiff.

Defendant does not establish otherwise. His position, in substance, is that he did not want to continue the business and plaintiff took advantage of his vulnerability from his wife's illness to get him to enter the Redemption Agreement. Even assuming that were true, it would render plaintiff's actions callous—not fraudulent. Defendant's specific arguments also lack merit.

First, defendant contends plaintiff told him the Redemption Agreement "was a mere 'formality' and 'with routine legal language.' " Defendant's testimony appears to reflect only the former. When his counsel asked him if plaintiff said "it was routine legal language," he started to say, "It is --"; plaintiff's counsel objected; and the trial court sustained the objection. Regardless, the court could reasonably accord all of this

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testimony little weight, given plaintiff told defendant by email to read the agreement and let him know if he had questions. We note the court could also have found his failure to read the agreement unreasonable. (Cf. Rosenthal v . Great Western Fin . Securities Corp . (1996) 14 Cal.4th 394, 424 [addressing statements that agreements were just formalities, observing "it is generally unreasonable, in reliance on such assurances, to neglect to read a written agreement before signing it."].)

Second, defendant contends neither plaintiff nor Delaney "disclosed the real nature of this Redemption Agreement and various clauses that were inserted for [plaintiff's] advantage such as Indemnification and General Release clauses." He states these "clauses were tailored to absolve [plaintiff] from his responsibilities under the Operating Agreement," and to burden him with their joint debts. But the indemnification and release clauses were in the Redemption Agreement. There was no concealment of the fact that plaintiff would be relieved of his responsibility for the business and its debts, in exchange for defendant receiving the land and business; indeed, that was the consideration. Defendant's reliance here on Palmquist v . Mercer (1954) 43 Cal.2d 92 is thus misplaced. ( Id . at p. 100 ["failure to disclose material facts . . . may constitute 'actual fraud' "].)

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Third, defendant contends Delaney's purportedly "intentional[] fail[ure]" to include two of the four then-outstanding loans was "further evidence of . . . fraudulent intent. . . ." We do not see how. Defendant was presumably aware of the loans, which he describes as joint obligations. He also cites no evidence Delaney intentionally omitted them, and the record suggests the omission was unintentional. Plaintiff did not remember if he told Delany about the other two loans, and Delaney said he would have included them if he knew about them.

Fourth, defendant directs us to plaintiff's January 2015 email stating defendant was owner of everything, and contends plaintiff was "trying to trick [him] into being 100% liable" for the company's debts by insisting that he "was 'legally' the 100% owner," when he knew that without a quitclaim deed "this was a false and misleading statement." We are not persuaded. Both parties' post-agreement actions were consistent with the Redemption Agreement being valid and defendant being sole owner, notwithstanding the delayed quitclaim deed. Further, defendant does not explain how a January 2015 email could have fraudulently induced him to enter the Redemption Agreement the previous year.

Defendant makes a related argument that "[p]laintiff's sole intention . . . was to relieve himself from . . . the loan obligations but . . . deceptively hold on to the 50%

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ownership of the Ranch in the event the market appreciated," and cites his June 3, 2014 email to plaintiff about the quitclaim deed. He does not establish plaintiff intentionally failed to provide the quitclaim deed, much less for fraudulent purposes. The June 2014 email asked if plaintiff had the quitclaim deed, not to provide it. Once defendant had the deed prepared in September 2015, plaintiff promptly signed it.

Fifth, he contends "the business and property were 'insolvent' at the time of the preparation of the Redemption Agreement" and the loans "exceeded the value of the business . . . ." He provides no support for these assertions (beyond his closing trial brief, which is not evidence), and does not establish they would support fraudulent inducement. He does not claim he was unaware of the company's financial situation when the parties entered the Redemption Agreement, nor would such a claim be credible given his work on the ranch and his joint responsibility for the loans.

Finally, defendant contends the Operating Agreement had dissolution, buy out, and transfer provisions, and plaintiff did not use them because they "would not exculpate [him] from his responsibility for the third-party loans," citing testimony from plaintiff and Delaney. Defendant mischaracterizes that testimony and, regardless, the argument fails. As discussed ante , he cannot establish fraudulent inducement based on the indemnification and release provisions. Thus, using the Redemption Agreement to utilize such provisions would not support such a claim either.

C. Operating Agreement Claims in Cross-Complaint

Defendant argues the trial court "erroneously validated the existence of the Redemption Agreement," "sided with [plaintiff's] argument that the Operating Agreement

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was no longer in effect," and thus "never addressed" his claims pursuant to the Operating Agreement. The trial court did not err in concluding the Redemption Agreement was valid, as discussed ante , and it did address and reject the Operating Agreement claims. Defendant does not contend the court's reason for doing so—the release provision in the Redemption Agreement—was erroneous, and he only addresses the court's other findings on the Operating Agreement in part. He thus forfeits his challenge to the ruling on the Operating Agreement claims. ( Badie , supra , 67 Cal.App.4th at pp. 784-785.) We would reject it regardless.

Addressing the Operating Agreement claims, the court stated that, "per the Redemption Agreement, there was a general mutual release . . . ." We infer the court determined the release in Section 8 barred these claims, and that interpretation is consistent with the language of the release and the nature of the claims. Under the release, defendant released plaintiff for claims involving "such party's ownership of Membership Interests in the Company," as well as "operations and/or business affairs of the company" and "dealings between or among the parties with respect to the Company" through the closing date. Defendant's claims were for breach of contract, breach of the duty of loyalty, breach of fiduciary duty, and declaratory relief. His allegations focus on plaintiff's actions during the operation of the business, including his alleged refusal to

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help defendant or contribute to loan payments, as well as his exit. The broad release language reasonably encompasses these claims.

The trial court also determined that "defendant's claimed damages for services and contributions are barred under the Operating Agreement[] (Ex. 2, sec. 2.1 and 3.3)," and this interpretation was likewise sound. Section 2.1 states "[n]o Member shall be required to make any additional capital contributions to the Company." Section 3.3 states "no Member . . . is entitled to remuneration for services rendered or goods provided to the Company . . . ." These provisions foreclose any claim by defendant that he was entitled to compensation for his services, or that plaintiff had to contribute more capital.

Defendant does not show otherwise. He does not discuss Section 2.1 in his opening brief, and we do not consider his brief discussion on reply. He does address Section 3.3, but not persuasively. He contends the trial court ignored his argument that Section 3.3 did not apply when the ranch was inoperable after the fire or to loan payments. It does not appear he raised the loan point below, and regardless, the court's ruling as to Section 3.3 was sufficient to resolve his arguments about it. The court did not have to discuss each point. ( Thompson , supra , 6 Cal.App.5th at p. 981.) He also identifies nothing in Section 3.3 to suggest the parties intended to exempt inoperable periods, or any contract language to support compensation for loan payments. ( Series AGI West Linn of Appian Group Investors DE , LLC v . Eves (2013) 217 Cal.App.4th 156,

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168-169 [courts " 'will not imply a better agreement for parties than they themselves have been satisfied to enter into, or rewrite contracts whenever they operate harshly.' "].) Defendant further contends the court "should not have ignored equitable considerations," and that "[a]s a matter of equity," he should have been indemnified for at least half of his expenditures on loans and maintenance. But he does not establish he plead equitable claims in his cross-complaint, and he provides no authority for such relief here. (See Wal-Noon Corp . v . Hill (1975) 45 Cal.App.3d 605, 613 [courts cannot create " ' "new, substantive rights [in a contract] under the guise of doing equity" ' "].)

Defendant offers several other arguments here as well, and none have merit.

First, he contends plaintiff "admitted that he operated other ranches in competition with the parties' [r]anch" and this "might be why he instructed [defendant] to replace the 'avocados' with 'pomegranates.' " To the contrary, plaintiff denied his other ranches competed with Warren Hills, and testified that having multiple farms allowed for buying power and sharing of employees and equipment. He also testified the decision to plant pomegranates was mutual, but mainly defendant's idea. Delaney similarly recalled that defendant was more enthusiastic about pomegranate. In any event, the argument amounts to speculation about plaintiff's motives, and we reject it. We likewise reject defendant's speculation that plaintiff's view of the ranch as a hobby "might be why he did not actively participate in the reconstruction effort."

Second, defendant contends plaintiff "breached his duties to the LLC when he failed to procure fire insurance as required by their lender . . . and failed to advise [defendant] of the same . . . ." He further contends plaintiff should have been aware of

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the 2003 fire in the area. Defendant does not explain why it was plaintiff's duty to conduct research and procure insurance, when they were equal partners. Further, any failure to obtain insurance would have occurred prior to the 2007 fire, raising questions about timeliness. (See American Master Lease LLC v . Idanta Partners , Ltd . (2014) 225 Cal.App.4th 1451, 1479 [three- or four-year statute of limitations for breach of fiduciary duty].)

Third, defendant argues the "Operating Agreement also required the members to be actively engaged in the Company's management," and plaintiff "continuously told [him] that he was too busy and [he] had to take care of all matters regarding the Ranch," especially after the fire. He further contends plaintiff abandoned the ranch. But plaintiff testified he did help with rebuilding and managing the ranch, and a trier of fact could credit that testimony.

Fourth, defendant contends his late wife "should also have been paid for her bookkeeping services" to the company, and the trial court "never addressed this matter." It does not appear defendant raised this issue for the trial court in his request for statement of decision. Regardless, defendant does not explain how any alleged failure by the company to pay his wife supports claims against plaintiff.

Lastly, defendant argues plaintiff "refused to help with all the last-ditch efforts of the Defendant in preventing the Ranch from going into Foreclosure" and "refused to sign on the $125,000 FSA Loan . . . which became available in April 2015," despite "falsely . . . promising" he would do so. Defendant is talking about alleged events that

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took place after the Redemption Agreement. We have concluded the Redemption Agreement was valid, meaning plaintiff had no further obligations to the company.

D. Attorneys' Fees

Finally, defendant raises two issues regarding attorneys' fees. First, he contends he "appeals from the . . . Attorney Fees award as part of the Order issued on December 4, 2018 and January 10, 2019," and requests we "reverse the decision of the trial court and vacate the award of attorney fees and costs to [plaintiff]." Because we affirm the judgment, and defendant offers no other basis to challenge fees or costs, we need not resolve whether he perfected this appeal. We elect to address why he did not.

Judgment was entered on October 4, 2018. It provided for costs to plaintiff, with a blank for the amount, and did not address fees. Plaintiff then moved for fees. Defendant appealed from the judgment on December 3. On December 4, the trial court awarded fees and entered an amended judgment. On December 7, plaintiff served notice of entry of the amended judgment and filed a memorandum of costs. On December 13, defendant filed his notice designating the record on appeal, and listed October 4, 2018 and December 7, 2018 as the dates of judgment. On January 3, 2019, the court entered a further amended judgment reflecting costs. Plaintiff served notice of entry on January 10. Defendant did not file another notice of appeal after December 3, 2018.

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"A postjudgment order which awards or denies costs or attorney's fees is separately appealable [citations], and if no appeal is taken from such an order, the appellate court has no jurisdiction to review it." ( Norman I . Krug Real Estate Investments , Inc . v . Praszker (1990) 220 Cal.App.3d 35, 46 ( Praszker ).) " 'Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment [or order] being appealed.' " ( Id . at p. 47.) Here, defendant's December 3 notice of appeal identified only the October 4 judgment; indeed, it was filed before fees were awarded on December 4. He did not appeal from the fee order, and we cannot review it. (See Colony Hill v . Ghamaty (2006) 143 Cal.App.4th 1156, 1171-1172 [reviewing court lacked jurisdiction "because [the party] did not appeal the postjudgment order awarding attorney fees"].)

We reject defendant's arguments. In his opening brief, he contends he appealed from the fee award in the orders issued in December 2018 and January 2019. He is referencing the amended judgments, but he does not establish he filed a notice of appeal from either one. On reply, he contends he "appealed the orders on 10/4/18 and 12/7/18 as indicated on the [Notice Designating Record on Appeal]." Not so. Although we may consider a record designation in deciding if a "respondent has been misled by errors on the face of the notice of appeal" ( D'Avola v . Anderson (1996) 47 Cal.App.4th 358, 362), that question only arises if the notice of appeal could be liberally construed to encompass the order in the first place. Defendant also contends the "[o]rder . . . dated 10/4/18 . . . gave Attorney Fees and costs" to plaintiff. We again disagree. The document dated October 4, 2018 was the original judgment; there was a blank for costs, but the court had

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not set the amount or ruled on fees at all. (See Praszker , supra , 220 Cal.App.3d at p. 46, fn. 4 [rejecting argument that "recitation in the . . . judgment that plaintiff be awarded . . . 'costs and disbursements' was sufficient to encompass the subsequently awarded litigation costs"].)

Second, defendant contends Civil Code section 1717 entitles him to attorneys' fees under the Redemption Agreement for his cross-complaint, and asks us to rule on whether he is entitled to fees. This request is moot in light of our disposition, as we are affirming the judgment against him.

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The judgment is affirmed. Plaintiff shall recover costs on appeal.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

GUERRERO, J.