Ramos v. Tomasello

Filed 8/21/06 Ramos v. Tomasello CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed.

Law Office of Michael C. Maddux and Michael C. Maddux for Plaintiffs and Appellants.

No appearance for Respondents.

1. Introduction

Plaintiffs Victor Ramos and Denise Denbesten appeal from a judgment in favor of defendants Thomas James Tomasello, April Lynn Bogart Tomasello, Nunzio Tomasello and Stella LaVerne Tomasello on plaintiffs' claims for specific performance and declaratory relief concerning the purchase of residential real property. All four defendants have owned the subject property as joint tenants since 1991. A default was entered against Nunzio Tomasello and Stella LaVerne Tomasello on August 26, 2005, but the court gave judgment in their favor and they are not parties to the appeal.

We agree with the trial court's decision that plaintiffs breached the contract involving the property and are not entitled to specific performance. We affirm the judgment.

2. Factual and Procedural Background

In summarizing the facts and the court trial, this court is hindered by the inadequate appellate record, as designated by plaintiffs, which does not include the complaint or the answer. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498.) Additionally, the one-page statement of facts with only a few citations to the record is not helpful. (Cal. Rules of Court, rule 14(a)(2)(C); Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 435, fn. 2.) Nevertheless, we endeavor to analyze the case with the materials provided to us.^[1]

According to the trial court's statement of decision, plaintiffs sued defendants for specific performance and declaratory relief. Originally, the two defendants who are parties to the appeal, Thomas Tomasello and April Tomasello, had agreed to rent a residence located at 899 West Hays to plaintiffs for $250 per month with an option to purchase the property for $45,000 between September 1996 and September 1998.

Subsequently, plaintiffs and the two defendants executed a written agreement dated March 11, 1998. The agreement, drafted by defendant Thomas Tomasello, is not a model of composition and is difficult to understand in places. But, in substance, the agreement provided defendants would sell the property for $44,000 to plaintiffs at some future date, subject to various covenants. Defendants would continue to retain the ownership of the property for some period of time. Plaintiffs agreed to pay $375 toward two existing liens on the property and an additional $50 for a total monthly payment of $425 with some anticipated increases. Plaintiffs had to pay the amount of the taxes to defendants either within 15 days of when they were due or monthly in the amount of $46.60. Plaintiffs also agreed to obtain property insurance coverage of $55,000. The agreement also referred to plaintiffs obtaining new financing to complete the purchase.

Plaintiffs did not pay the taxes due on that date or any other taxes. Plaintiffs could not obtain property insurance as required by the agreement. Plaintiffs could not obtain a loan to buy the property.

In spite of the language of the agreement, both plaintiffs testified they did not understand they were obligated to pay the property taxes. They believed they were in the process of buying the property until October 2003 or February 2004 when defendants offered to sell the property again for $88,000 or continue to rent it for $550 a month.

Defendants testified the written agreement was an option to purchase but that plaintiffs were not able to secure financing or to open an escrow for the purchase.

In its statement of decision, the trial court held there was a contract between plaintiffs and defendants but defendants breached the contract by not paying the property taxes or obtaining property insurance. Therefore, a cause of action for specific performance could not lie.

3. Discussion

Plaintiffs devote much of their brief to arguing the subject agreement was a land sales contract, not an option agreement. The real property sales contract is described in 4 Witkin, Summary of Cal. Law (10th ed. 2005), Security Transactions in Real Property, § 24, p. 815: â€