Marriott v. DJJ Family Ltd. Partnership

Filed 2/22/07  Marriott v. DJJ Family Ltd. Partnership CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Mel Red Recana, Judge.  Reversed and remanded with directions.

            Ezer Williamson & Brown and Mitchel J. Ezer for Plaintiff and Appellant.

            Law Offices of Jerry K. Staub and Jerry K. Staub for Defendants and Respondents.

INTRODUCTION

Plaintiff and appellant Edward L. Marriott (Marriott) sued defendants and respondents the DJJ Family Limited Partnership and Vatche Boyadjian (collectively Boyadjian)^[1] for breach of contract for the sale of real estate, specific performance, and declaratory relief.  Following a bench trial, the trial court entered judgment in favor of Boyadjian. 

We reverse and remand with directions to the trial court to enter judgment for specific performance in favor of Marriott.  The trial court erred by enforcing a time is of the essence provision in the parties' purchase agreement.  Alternatively, Boyadjian waived enforcement of the time is of the essence provision.

In addition, substantial evidence does not support the judgment.  Instead, substantial evidence shows that Boyadjian, as seller, engaged in conduct which prevented the escrow company from performing its duties and prevented Marriott's loan from funding.  It was Boyadjian's conduct that prevented the escrow company from requesting loan documents from Marriott's lender by the anticipated close of escrow.  Moreover, because time was not of the essence, Marriott had a reasonable time to perform.  Marriott showed that he could have deposited into escrow the remainder of the down payment within a reasonable time.

FACTUAL AND PROCEDURAL BACKGROUND

1.         Marriott Contracts to Purchase Improved Real Property

In May 2002, non-party Lawrence Moses entered into a real estate purchase contract with Boyadjian for the purchase of improved real property located at 571 South Coronado Street, Los Angeles, California (the Property).^[2]  The Property contained a 74-unit apartment building with two retail units.

In July 2002, Moses assigned his contractual rights to Marriott.  Marriott's real estate agent was Festus Ilegbodu (Ilegbodu).  Boyadjian's real estate agent was Ed Rosten (Rosten).^[3]

Section (4) of the Purchase Agreement entitled, â€