Citizens Savings & Loan Ass'n v. Khoury (84 Cal. App. 3d 244, 1978)

Opinion

KINGSLEY, J.

Defendant appeals from a judgment ordering specific performance of an agreement to sell real property. We modify the judgment and affirm it as modified.

Defendant is the owner of a tract of land in Ventura County, on part of which his home is located. The property is subject to a deed of trust in favor of Dennis and Shirley Johnson. On July 10, 1975, he agreed to sell a portion of that property to plaintiff, who intended to construct thereon a branch office.- Under the terms of that agreement, defendant agreed to secure the necessary approval for a “lot split” dividing the part used as his home from the part to be conveyed to plaintiff. Plaintiff agreed to secure the environmental reports and administrative permits necessary for it to construct and occupy a branch office on the land to be purchased by it. The parties executed a deposit receipt and escrow instructions designed to carry out their bargain.

After the escrow was opened, defendant discovered that it would take much longer, and involve greater expense than he had anticipated to enable him to cariy out his agreement. The Johnsons were necessary parties to an application for the lot split and they had to agree to release the land to be sold from the lien of their trust deed. This would take several months and the Johnsons were not being cooperative.

On September 12, 1975, defendant wrote to the escrow company, canceling the escrow; plaintiff refused to consent to the cancellation and the present lawsuit followed.

I

Admittedly, neither plaintiff nor defendant have performed the acts required of them by the purchase agreement. Defendant contends that he was not required to proceed with the lot split until after plaintiff had secured the permissions that it was to procure; plaintiff contends that it was not required to proceed with its part until the lot split was obtained and defendant was in position to convey the property. Defendant also contends that the agreement was unfair and that the purchase price ($35,000) was inadequate. On the record before us, those contentions are untenable.

The case was tried by the court without a jury; the parties stipulated that no reporter was necessaiy. As a result, we have only the judgment roll, defendant’s response to a request for admissions, and the documentary exhibits. The latter items, even if available to us on a judgment roll appeal, cast no light on the issues that defendant desires to raise here. It follows that we are bound by the trial court’s findings of fact, which answer completely all of the contentions here made. The pertinent findings are as follows:

“3. At all times herein relevant, Defendant Elias Khoury was and is the owner of a parcel of real properly located at the northeast comer of the intersection of Los Angeles Avenue and Spring Street in the community of Moorpark, County of Ventura, State of California, described as:

“Parcel 1 of that certain Parcel Map recorded April 2, 1976 in Book 20, Page 56 of Parcel Maps in the office of the County Recorder of Ventura County, State of California.

“The said parcel of real property is referred to hereinafter as ‘the larger parcel.’

“4. On or about July 10, 1975 at Los Angeles, California, Plaintiff Citizens Savings and Loan Association and Defendant Elias Khoury entered into a written agreement, denoted Deposit Receipt, wherein and whereby Defendant Elias Khoury agreed to sell and Citizens Savings and Loan Association agreed to buy a portion of the larger parcel, which portion is located at the northeast comer of the intersection of Los Angeles Avenue and Spring Street, community of Moorpark, County of Ventura, being a parcel 110 feet in length on the east and west and 182 feet in length on the north and south, as measured from the said corner. Said property is a portion of the larger parcel herein described and is hereafter referred to as ‘the subject real property.’

“5. Plaintiff’s Exhibit 1 in evidence is a true and complete copy of the said Deposit Receipt.

“6. On or about July 15, 1975, Plaintiff Citizens Savings and Loan Association and Defendant Elias Khoury executed written escrow instructions being Trans California Escrow Co., Escrow No. 1-1678.

“7. Plaintiff’s Exhibit 2 in evidence is a true and complete copy of said escrow instructions.

“8. On or about July 15, 1976, Plaintiff Citizens Savings and Loan Association deposited in escrow the sum of $3,500 as called for by the escrow instructions.

“9. Defendant Elias Khoury agreed, in both the Deposit Receipt and the escrow instructions, to obtain a lot split of the subject real property from the larger parcel of which it is a part, /.