Waterview Development v. Tai CA1/2 ( 2021 )

Filed 1/29/21 Waterview Development v. Tai CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
WATERVIEW DEVELOPMENT,
LLC,
Plaintiff and Appellant, A155077
v. (San Francisco County
VINCENT T.C. TAI, Super. Ct. No. GCG-13-536038)
Defendant and Respondent.
Waterview Development, LLC (Waterview) sued Vincent T.C. Tai (Tai)
over a purchase and sale agreement regarding an undeveloped lot owned by
Tai. Waterview alleged breach of contract, fraud, and negligent
misrepresentation, and sought specific performance as well as damages; after
a bench trial, judgment was entered for Tai. Waterview now appeals,
arguing that the trial court misinterpreted the agreement. We conclude that
Waterview fails to show error, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are largely undisputed, though their legal significance is
contested. We draw this summary from unchallenged portions of the trial
court’s statement of decision, uncontradicted testimony, and documents
admitted into evidence.
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A. The Purchase and Sale Agreement
The dispute arises from a purchase and sale agreement (PSA) for an
undeveloped lot located at 1111/1117 Sansome Street on Telegraph Hill in
San Francisco (the Property) that is owned by Tai. The Property, which rises
from Sansome Street on a steep incline, was subject to an easement recorded
in 2011 by John Sanger (Sanger Easement).
Walid Mando, a self-described architect/developer, contacted Tai in
January 2013 expressing his interest in purchasing the Property or entering
a joint venture to develop it.1 Tai disclosed the existence of the Sanger
Easement to Mando, who was aware of it as of February 1.
On June 9, Mando and Tai signed a 14-page PSA that Mando had
prepared. As required by the PSA, Mando paid a $10,000 deposit into escrow.
Under the terms of the PSA, Mando agreed to purchase the Property, “as is”
and subject to all recorded easements, for $650,000. Mando subsequently
assigned his rights under the PSA to Waterview, of which he is the sole
owner.
1. Conditions for Close of Escrow
The close of escrow, and the purchaser’s obligations to purchase the
Property, were subject to a number of conditions, including those set forth in
Section 3.05(a) of the PSA, which we reproduce here.
“Beginning on the day this Agreement is executed by both parties and
continuing until the later of (i) ninety (90) days after the day that all
Property Documents (as defined and described in Section 6.13[2]) have been
1 All dates are in 2013 unless otherwise stated.
2 The term “Property Documents” is defined as “(i) existing topography
maps and surveys, (ii) all existing current reports pertaining to the Property,
(iii) all warranties and guaranties relating to the Property that are in Seller’s
possession; (iv) all permits and governmental correspondence and notices
2
delivered to Purchaser or (ii) September 10, 2013 (the “Due Diligence
Period”), Purchaser (and any agents and consultants retained by Purchaser)
shall have the right to examine and inspect the Property, to investigate the
condition of title, zoning, entitlement, development potential, value and
usefulness of the Property, and to determine the suitability of the Property
for the use and development contemplated by Purchaser. It is anticipated
that during this period Purchaser, both directly and through its agents and
consultants, will conduct physical examinations of the Property (including
soils tests and environmental review), and will examine the condition of title,
zoning, and the value of the Property, and all prior applications for permits or
approvals and development rights related to the Property. Purchaser shall
also have the right, during this period and at Purchaser’s expense, to obtain a
current or updated survey of the Property. It is understood that access to the
Property shall be subject to the terms of Section 6.13 below.
“It shall be a condition of Close of Escrow and of Purchaser’s obligations
to purchase the Property that Purchaser, in its sole discretion, has approved
the physical condition and value and development potential of the Property
(including without limitation its environmental condition) and the condition
of title and zoning, and has determined that the use and development
limitations and opportunities of the Property are satisfactory to Purchaser in
his sole discretion, and has notified Seller that the Property is satisfactory to
Purchaser. If Purchaser shall fail to notify Seller in writing prior to
relating to any [sic] Property; (v) a current title report, together with copies of
all exceptions to title; (vi) preliminary grading plans; (vii) all reports
concerning the physical condition of any [sic] Property that are in Seller’s
possession; (viii) all soil reports, studies, and materials relating to the
Property; (ix) any environmental site assessments relating to the Property;
and (x) the bill for Property Taxes for the current tax year.”
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expiration of the Due Diligence Period that the Property is satisfactory and
that this condition is satisfied, then this condition shall be deemed not
satisfied and this Agreement shall automatically be terminated and escrow
canceled with no further liability of either party hereunder except as otherwise
expressly provided in this Agreement.” (Italics added.)
2. Access Requirements
Section 6.13 of the PSA required Tai to provide access to, and
information about, the Property as follows:
“Seller hereby grants Purchaser and its agents and consultants access
to the Property at all reasonable times prior to the Close of Escrow for the
purpose of examining and inspecting the Property and performing
environmental tests and surveys, and shall promptly make available to
Purchaser and its agents and consultants all information and documents
regarding the Property in Seller’s possession that Purchaser or its agents or
consultants may reasonably request from time to time . . . . Without limiting
the generality of the foregoing, not later than three (3) business days after
the date this Agreement has been executed by both parties, Seller shall
deliver to Purchaser complete copies of the [Property Documents], to the
extent not already delivered to Purchaser[.] . . . Copies of any documents
materials or notices pertaining to the Property that come into Seller’s
position prior to Close of Escrow and have not previously delivered [sic] to
Purchaser shall be immediately delivered to Purchaser.”
In addition, Section 6.13(b) states, “Seller shall provide such
cooperation in connection with Purchaser’s investigation and due diligence as
Purchaser may reasonably request from time to time, but at no out-of-pocket
expense to Seller.”
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3. Other Terms
The PSA included a “Liquidated Damages” provision stating that the
purchaser’s deposit was “expressly non-refundable” except under certain
conditions, and that the deposit was to be paid to the seller as liquidated
damages in the event of the purchaser’s breach or default. We discuss this
provision further below.
In addition, the PSA provided, “Time is of the essence of this
Agreement,” and the PSA included an integration clause, which stated as
follows: “The terms of this Agreement are intended by the parties as the final
expression of their agreement with respect to such terms as are included in
this Agreement and may not be contradicted by evidence of any prior or
contemporaneous agreement or discussions. This Agreement also constitutes
the complete and exclusive statement of its terms, and no extrinsic evidence
whatsoever regarding the terms hereof may be introduced in any judicial or
other proceeding involving this Agreement. No term or condition of this
Agreement shall be deemed amended or waived except by a written
instrument executed by the party against whom enforcement of such
amendment or waiver is sought.”
B. Due Diligence Period
On July 31, Mando sent Tai an email in which he stated that “the
unusually tight restrictions of the [Sanger Easement] are inconsistent with
the soil investigation and geotechnical testing that are integral to proper due
diligence. For this reason, I do not see how we can avoid adjusting the due
diligence period to take account of the [Sanger Easement] interference.
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Perhaps you can facilitate access by obtaining a waiver from John
Sanger . . . .”3
On September 10, the earliest date on which the Due Diligence Period
specified in the PSA could have ended, Mando sent an email to Tai in which
he stated that he was waiting for locks to be removed from a gate so he could
access the Property, and that he had not received three categories of
documents about the Property: the current property tax bill, a copy of the
hazard and liability insurance policy for the property, and “[a]ll records
regarding the condition and maintenance of the property including operation
and maintenance contracts of the property and insurance contracts and
policies.”4 On the evening of September 10, Tai sent Mando an email
reporting that the chain on the gate had been cut. Tai attached the current
property tax bill, and the insurance declarations expiring in July 2013 and
July 2014, and stated, “As far as I know, for the past years there are no
records and maintenance contracts for this property.”
3The purpose of the Sanger Easement, as stated in its Recitals, was
“preserving and protecting the Easement Area in its current undeveloped and
geologically and geophysically unchanged state with its existing vegetation
undisturbed.” The relevant “restrictions,” as identified by Waterview at trial
and on appeal, appear in the following portion of the easement agreement:
“3. Prohibited Uses. Any activity on, use or development of the Easement
Area that is inconsistent with the purpose of the Easement, including but not
limited to any excavation or grading or the erection of any building, billboard,
radio or telephone towers, signs, or any other physical structure or the
removal of vegetation which is not dead or diseased, all of which are
prohibited.”
The PSA defined the Property Documents to include the current
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property tax bill, and various reports. The PSA also required Tai to maintain
hazard and liability insurance on the Property.
6
On September 25, Mando sent Tai an email stating that his consultants
“need to obtain soil samples from at least six locations on the Property, four
of which are on the [Sanger Easement.] The [Sanger Easement] prevents
such testing and investigation.” Mando wrote that in order to provide “the
opportunity to adequately inspect and examine the Property,” Tai was
required to remove the Sanger Easement, enlarge the current 3-foot wide
accessway to the Property to 12 feet, and clear debris and dead trees. Mando
further wrote, “Section 3.05 of the [PSA] provides that the Due Diligence
Period continue until 90 days after all of the Property Documents are
delivered. You did not deliver the last of the Property Documents until
September 10, 2013, assuming these were the last remaining documents you
have. The Due Diligence Period will be further extended so long as the
encumbrance/easement and access issues remain open.”5
Tai responded by email on October 4, rejecting the position that he was
required to remove the Sanger Easement or perform any site preparation
work. As to access to the property for testing, Tai wrote, “If your view of the
[Sanger Easement] is that you need Sanger’s permission before you could do
any testing in any affected area, you are free to seek that permission. To the
extent the easement controls, it is a pre-existing right that is a matter of
record, and I lack any greater right. The easement binds both you and me
and everybody else. That said, I am not sure I necessarily agree with you
that you need Sanger’s permission before you could do the testing that you
desire (concerning which testing I have no information in any event).” Tai
acknowledged that he had not provided the last of the Property Documents
5On appeal, Waterview does not challenge the trial court’s finding that
the PSA did not require Tai to remove any easements recorded against the
Property.
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until September 10, and wrote, “If on that basis you want to extend the due
diligence period to 90 days therefrom; i.e., December 9, . . . I can and will
have no objection.” Tai testified at trial that as of October 4, there was
nothing further he needed to do to help Mando get access to the Property.
Mando replied on October 31 that Tai’s position with respect to access
to the Property “leaves me with no choice but to have my attorney handle this
situation.”
At trial, Mando testified that he did not believe the Due Diligence
Period had ended on December 9: he said, “The end of due diligence period is
supposed to be happening after I get access to the property and do my
testing.” He acknowledged that the PSA did not state that, but claimed it
was “implied by contract.”
There is no dispute as to the following: as of December 9, Waterview
did not notify Tai that the Property was satisfactory, which was a condition of
the close of escrow according to section 3.05(a) of the PSA. Nor did
Waterview explicitly terminate the PSA, or close escrow.
On December 10, Waterview filed suit against Tai.
C. Proceedings in the Trial Court
Waterview filed the operative Fifth Amended Complaint (Complaint) in
March 2016 alleging causes of action for specific performance, fraud, and
negligent misrepresentation.
A four-day bench trial took place in January 2018. The court heard
testimony from Mando, from Waterview’s expert, and from Tai, and reviewed
the parties’ joint stipulations of facts regarding the testimony of Sanger.
Fifty-seven exhibits were admitted into evidence.
After the parties submitted closing and rebuttal briefs, the trial court
issued its tentative statement of decision. Waterview filed extensive
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objections to which Tai responded. Subsequently the court issued its
statement of decision and order for entry of judgment.
The court concluded that the Due Diligence Period was triggered by
Mando’s receipt of the Property Documents on September 10, and the Due
Diligence Period ended 90 days later, on December 9. Because the purchaser
did not notify Tai in writing that the Property was satisfactory, the PSA
terminated by operation of its terms (specifically, section 3.05(a)), on
December 9, and under the liquidated damages provision Mando’s deposit
was not refundable. Judgment was entered for Tai on Waterview’s three
causes of action, and the court ordered that under the terms of the PSA, the
deposit was to be paid to Tai, and Waterview was to pay Tai’s attorney fees.
Waterview timely appealed.
DISCUSSION
On appeal, Waterview argues that Tai breached the PSA by failing to
cooperate in providing access to the Property; therefore, according to
Waterview, the trial court erred in finding that Tai did not default on his
obligations under the PSA prior to December 9, and in finding that the Due
Diligence Period was triggered on September 10 and expired on December 9,
at which point the PSA terminated according to its terms. Waterview further
argues that the court erred in its interpretation of the liquidated damages
clause in the PSA, and that even if the trial court had been correct in finding
that the PSA terminated on December 9, Waterview did not forfeit the
$10,000 deposit. The arguments lack merit.
A. Standard of Review
We review the interpretation of a contract de novo, “according to the
generally accepted canons of interpretation so that the purposes of the
instrument may be given effect.” (Parsons v. Bristol Development Co. (1965)
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62 Cal.2d 861, 865, citing Civ. Code, §§ 1635-1661 and Code Civ. Proc.,
§§ 1856-1866.) “Any contract must be construed as a whole, with the various
individual provisions interpreted together so as to give effect to all, if
reasonably possible or practicable. [Citations.] Courts must interpret
contractual language in a manner which gives force and effect to every
provision, and not in a way which renders some clauses nugatory, inoperative
or meaningless. [Citations.] The fundamental goal of contractual
interpretation is to give effect to the mutual intention of the parties.
[Citations.] The mutual intention to which the courts give effect is
determined by objective manifestations of the parties’ intent, including the
words used in the agreement, as well as extrinsic evidence of such objective
matters as the surrounding circumstances under which the parties
negotiated or entered into the contract; the object, nature and subject matter
of the contract; and the subsequent acts and conduct of the parties.
[Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner and Smith,
Inc. (1998) 68 Cal.App.4th 445, 473-474.) In particular, “[t]he conduct of the
parties after execution of the contract and before any controversy has arisen
as to its effect affords the most reliable evidence of the parties’ intentions.”
(Kennecott Corp. v. Union Oil Co. (1987) 196 Cal.App.3d 1179, 1189.)
“ ‘When a dispute arises over the meaning of contract language, the
first question to be decided is whether the language is “reasonably
susceptible” to the interpretation urged by the party. If it is not, the case is
over. [Citation.]’ ” (Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56
Cal.App.4th 1441, 1448.)
B. The PSA Terminated of Its Own Accord on December 9, 2013
Waterview’s primary argument on appeal is that Tai breached the PSA
by failing to fulfill its duty to cooperate with Waterview’s investigation of the
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Property, specifically by not providing Waterview and its consultants with
access to the Property to perform environmental tests and surveys.
Waterview’s theory is that as a result of Tai’s breach, Waterview was unable
to determine whether the Property was satisfactory. Therefore, the Due
Diligence Period never began, or if it did, it did not end. In any event,
Waterview contends it was relieved of its obligations under the PSA,
including its obligation to inform Tai that the Property was satisfactory as a
condition of the close of escrow, and the PSA did not terminate. We are not
persuaded.
Waterview relies on section 6.13 of the PSA, which grants the
purchaser access to the property for purposes of inspection and requires the
seller to cooperate with the purchaser’s investigation, “but at no out of pocket
expense to Seller,” and section 3.05(a), which makes the purchaser’s approval
of the condition of the Property a condition of the close of escrow. But
Waterview ignores the fact that section 3.05(a) explicitly establishes that the
Due Diligence Period runs until the later of 90 days after the Property
Documents are delivered to the purchaser or September 10.6 During the Due
Diligence Period, Waterview has the right to examine and inspect the
property, but nothing in section 3.05(a), or anywhere else in the PSA, states
that the timing of the Due Diligence Period is established by access to the
Property.
6 Waterview contends that there are “unusual geotechnical issues
involved with the Property,” and that the parties agreed to the 90-day Due
Diligence Period so that Waterview could satisfy its concerns about the
stability of the steep hillside. Regardless, the PSA is unambiguous that the
Due Diligence Period begins to run when the Property Documents are
delivered to the purchaser.
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Waterview argues that until there was access to the Property, the
purchaser cannot exercise its sole discretion to determine whether the
Property is satisfactory. Even if we accept that proposition, it does not help
Waterview, because there is no dispute that access to the Property was
provided as of September 10, when locks were removed from the existing
gate. Contrary to Waterview’s argument, nothing in the PSA required Tai to
“obtain[ ] permission from the easement holder and/or ensur[e] a safe path of
travel through the Property.” And nothing in the PSA required Tai to take
steps such as enlarging the accessway to the Property or clearing debris,
which would have imposed costs on Tai. Waterview does not dispute that
before the PSA was signed, Mando and Tai did not discuss modification of the
Property to allow access for inspection.
Section 6.13, which allows the purchaser and its agents and
consultants access to the Property for purposes of examination and testing,
does not obligate the seller to modify the Property or remove debris, or do
anything else that imposes out-of-pocket expenses on the seller. Instead,
section 6.13 is a license to the purchaser because it gives the purchaser
“authority from the owner to perform an act or acts upon the property.”7
(Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 36.)
“[A] license does not create or convey any interest or estate in the real
property; it merely makes lawful an act that otherwise would constitute a
7 Section 6.13 also requires the purchaser to indemnify the seller
against “claims of personal injury, death, or property damages arising from
any inspection or testing of the Property or any part thereof or any activity on
or about the Property by Purchaser or its consultants or agents” as well as
against “claims for mechanics’ liens or similar claims arising from inspections
of the Property or any work performed on the Property by Purchaser or its
consultants or agents.”
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trespass. . . . ‘A license in this sense is a personal privilege conferred either
by a written or oral agreement, to perform a certain act or acts without
conferring any interest in the land.’ ” (6 Miller & Starr, Cal. Real Estate (4th
ed. 2020) § 15:2.)
Waterview gains nothing by framing its argument in terms of a breach
of the implied covenant of good faith and fair dealing. Waterview does not
contend that Tai took affirmative steps to prevent testing or inspection of the
Property. The implied covenant does not impose obligations that are
contrary to the express terms of the agreement. (Storek & Storek, Inc. v.
Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 55.) Because the PSA is
explicit that Tai need not incur any out-of-pocket expense in cooperating with
access to the property, the implied covenant cannot require Tai to incur such
expenses by modifying the property or removing vegetation or debris. And
because the PSA stated that the Property would be taken “as is” subject to
recorded easements, Tai had no obligation to “obtain[ ] a waiver” of the
Sanger Easement or permission from Sanger for Waterview to conduct the
desired testing, even assuming that a waiver or permission was necessary.8
In its opening brief, Waterview contends that even though the PSA has
a “time is of the essence” clause, Tai waived that provision by allowing the
September 10 due diligence deadline to pass. The implication, apparently, is
that the waiver of the provision supports Waterview’s position that the Due
8 Waterview points to nothing in the record that shows precisely what
testing was envisioned. And Waterview presents no argument or authority
as to how the language of the Sanger Easement was to be construed:
Waterview simply points to Mando’s statement to Tai that the testing was
forbidden by the easement, and asserts that “Mando was concerned that
geotechnical evaluation and taking soil samples would violate the [Sanger
Easement].”
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Diligence Period was indefinitely extended and the PSA did not terminate.
Tai claims that Waterview forfeited this issue by failing to raise it in the trial
court, and Waterview offers no rebuttal to that point in its reply brief. Even
if the argument had not been forfeited, it would be of no avail. The argument
ignores the plain language of the PSA, which provides in section 3.05(a) that
the Due Diligence Period extended to the later of September 10 or 90 days
after the Property Documents had been delivered to the purchaser.
Waterview does not point to anything that suggests that Tai waived the “time
is of the essence” provision: to the contrary, Tai’s October 4 email, in which
Tai agreed to extend the Due Diligence Period to December 9, 90 days from
the date when the last of the Property Documents were provided, is evidence
that Tai did not waive the provision.
In sum, Waterview has not shown any error in the trial court’s finding
that Tai did not default on his obligations under the PSA. Nor has
Waterview shown any error in the court’s findings that the Due Diligence
Period began on September 10, when Mando received the last of the Property
Documents, that the Due Diligence Period ended 90 days later, on December
9, and that the PSA terminated on December 9 pursuant to the terms of
section 3.05(a).
C. Waterview Has Forfeited the Escrow Deposit
Waterview argues that even if the PSA terminated on December 9 by
virtue of its failure to notify Tai that the Property was satisfactory, the trial
court erred in concluding that Waterview had forfeited the $10,000 escrow
deposit. Tai argues the merits of the issue, and also argues that Waterview
waived or forfeited its argument regarding the deposit by failing to raise the
issue below. It would have been better practice for Waterview to raise the
issue as part of its objections to the trial court’s tentative statement of
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decision; nevertheless, in light of Waterview’s concession that the issue raises
a pure question of law concerning the interpretation of the PSA on
undisputed facts, we exercise our discretion to address it. (RN Solution, Inc.
v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1518.)
1. Additional Background
The PSA includes provisions that address whether the $10,000 deposit
is refundable.
Under section 2.02 of the PSA, the deposit “shall be refundable to
Purchaser until the condition set forth in Section 3.05(a) has been satisfied or
waived, and thereafter shall be non-refundable (unless escrow fails to close by
reason of Seller’s default or failure of a condition of closing) and shall be paid
to Seller pursuant to Section 5.01 below in the event escrow fails to close by
reason of Purchaser’s default.”
Section 5.01, entitled “Liquidated Damages,” states in relevant part:
“The Deposit is expressly non-refundable except if Purchaser
terminates this agreement (i) prior to expiration of the Due Diligence Period,
as permitted under Section 3.05(a), or (ii) as otherwise permitted under
section 3.05 by reason of a default by Seller or the failure of any condition to
Purchaser’s obligation to close escrow. Moreover, should escrow fail to close
due to Purchaser’s breach or default hereunder, then Seller shall be released
from its obligation hereunder to sell the Property, and the Deposit paid under
Section 2.02(a) and (b) shall be retained by or paid to Seller as liquidated
damages.”
Section 3.05(a) allows the purchaser to terminate the agreement during
the Due Diligence Period by providing written notice to the seller that the
property is not satisfactory. In addition, section 3.05 allows the purchaser to
terminate by providing written notice to the seller in case of failure of a
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condition of escrow, including default or breach by the seller of conditions
concerning the close of escrow.9
In its statement of decision, the trial court concluded as follows: under
5.01 of the PSA, the deposit “is ‘expressly non-refundable’ except if
Waterview terminates the PSA prior to expiration of the Due Diligence
Period or by reason of the failure of any condition to Waterview’s obligation to
close escrow. Because the contract was terminated by Waterview’s implicit
dissatisfaction with the property’s condition, Tai is entitled to the money
deposited in the escrow account.” The court directed Waterview “to pay, or
cause escrow to pay, Defendant Tai the moneys currently held in the escrow
account as liquidated damages due to the termination of the PSA on
December 9.”
2. Analysis
Waterview argues that by virtue of the language in sections 2.02 and
3.05(a), the PSA “explicitly states that the deposit is not forfeited if
Waterview does not notify Seller that the condition of the Property is
satisfactory.” As we shall explain, we disagree. Waterview further argues
that, in light of sections 2.02 and 3.05(a), we must interpret section 5.01 to
mean that the deposit was not forfeited in the circumstances here. Again, we
disagree.
Section 2.02(a) of the PSA provides that the deposit is refundable “until
the condition set forth in Section 3.05(a) has been satisfied or waived.”10
9 Waterview does not contend that it provided written notice of
termination to Tai, nor does it contest the trial court’s finding that as of
December 9, 2013, the end of the Due Diligence Period, Waterview did not
explicitly terminate the PSA.
The “condition set forth in Section 3.05(a)” is that the purchaser has
10
determined that the Property is satisfactory and so notified the seller in
16
Neither of those things happened here; Waterview let the Due Diligence
Period lapse. Thus, under section 3.05(a), Waterview’s failure to notify Tai
that the Property is satisfactory means that the condition is “deemed not
satisfied,” and that the agreement “automatically . . . terminate[s],” and
escrow is “canceled with no further liability of either party hereunder except
as otherwise expressly provided in this Agreement.” (Italics added.)
Waterview would have us interpret section 2.02(a) to mean that as long
as Waterview has not stated that the property is satisfactory, the deposit
remains refundable after the contract has automatically terminated. That
interpretation is inconsistent with the principle that we interpret individual
provisions in the context of the contract as a whole, which requires us also to
consider section 5.01, which states that the deposit is non-refundable unless
the purchaser terminates the agreement before the expiration of the Due
Diligence Period, or the purchaser terminates the agreement as otherwise
permitted by section 3.05.
We can harmonize the statement in section 2.02(a), which states that
the deposit is refundable only until a certain point, with the statement in
section 5.01, which states that the deposit is non-refundable unless certain
conditions are met, by interpreting section 2.02(a) as applying for the
duration of the Due Diligence Period. Until the Due Diligence Period ends,
Waterview, as the seller, has discretion to terminate the PSA, and if it does
so, the deposit is refundable, as provided by both section 2.02(a) and 5.01.
But once the Due Diligence Period has ended, under section 2.02(a) and 5.01,
the deposit is not refundable unless Waterview terminates after a breach or
writing. We need not consider whether the condition was waived, because
Waterview does not argue the point.
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default by the seller, Tai. There being no such breach or default by Tai, the
deposit is nonrefundable.
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on
appeal.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A155077, Waterview Development, LLC v. Tai
19