Abraha v. Kim

Filed 10/17/07 Abraha v. Kim CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith Chirlin, Judge. Affirmed and remanded with directions.

Noe and Associates and Eden Noe for Defendant and Appellant.

Solomon, Saltsman & Jamieson, Rodney Bruce Evans and Michael Akopyan for Plaintiff and Respondent.

_____________________________________________

Defendant Amy Pina Kim (seller) entered into a contract to sell a market and the property on which the market sat to plaintiff Mekonnen Tafere Abraha (buyer). Two escrows were opened, one for the market and the other for the property; they were to close concurrently. It subsequently appeared that seller could avoid a $3,000 prepayment penalty on her own mortgage on the property if the sale of the property were to be delayed nine months. The parties modified their agreement to close the sale of the market as originally planned, and close the sale of the property after the prepayment penalty period had elapsed. The sale of the market was consummated as scheduled, but the seller ultimately refused to sell buyer the property. Buyer brought suit for specific performance. After a court trial, judgment for specific performance was entered in favor of buyer. Seller appeals, arguing that the evidence was insufficient to support the trial courts conclusion that the parties had modified their agreement. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

Seller owned the Louies Jr. Market, a small market located in Los Angeles. In connection with her purchase of the market (or the property on which it was located), seller had executed a note for $100,000 in favor of Thomas Van Lewis Jr. The note had an interest rate of 8% and required monthly payments of $955.66. The note contained an acceleration clause; if the property was conveyed without Van Lewiss written consent, the entire note became due and payable. Moreover, the note contained a prepayment penalty, entitling Van Lewis to additional sums if any prepayment was made prior to April 12, 2004.

In 2003, buyer wanted to purchase a small business to run with his brother, Hagos Abraha (buyers brother). Buyer was not interested in purchasing a business unless he could purchase the property on which it was located as well; he did not want to have a landlord. In March 2003, buyer submitted a written offer to seller for the market and the real property. The offer was for a total purchase price of $400,000.^[2] Buyer was to pay this consideration as follows: $100,000 in cash; $100,000 by assuming the Van Lewis note; and $200,000 in a note payable to seller at 9% interest. On March 18, 2003, seller accepted the offer.

Two separate escrows were opened at New Star Escrow. The first was for the sale of the business. The escrow instructions for this escrow indicate consideration of $200,000, comprised of $100,000 in cash and $100,000 to be seller-financed. The escrow instructions indicate the escrow was conditioned on the Department of Alcoholic Beverage Control (ABC) approving the transfer of sellers liquor license to buyer.

The second escrow was for the sale of the property itself. The escrow instructions^[3]indicate consideration of $200,000, comprised of the assumption of the Van Lewis note and $100,000 to be seller-financed.^[4] Supplemental escrow instructions add, This escrow is contingent upon the Buyer qualifying for and obtaining assumption of Sellers Original Financing from previous owner in the approximate balance amount of $100,000.^[5] The supplemental instructions also state, This escrow is contingent upon Concurrent closing with [the] business escrow [for the sale of the market]. Both escrows were to close on June 17, 2003. The instructions contain a time is of the essence clause, an integration clause, and a term stating that the instructions shall not be modified except in writing signed by both parties.

Buyer decided that he wanted to put the business in his brothers name. Buyers brother was new to the United States, and buyer wanted to help him establish credit. The $100,000 cash payment would still come from buyer, but he would be buying the market for his brother. On March 26, 2003, an amendment to the escrow instructions for the market, but not the property, was signed by both parties, indicating that Buyers vesting is amended to vest title in buyers brother. Subsequently, however, buyers brother signed the escrow instructions as the new purchaser, and seller never indicated that she would accept only buyer, not buyers brother, as the debtor on her $100,000 loan in connection with the purchase of the market.

In connection with the property escrow, escrow officer Joanne Lee contacted Van Lewis to obtain his consent to the assumption. Both buyer and seller had executed an assumption agreement, and Lee forwarded it to Van Lewis for his approval. Van Lewis initially could not decide whether to approve the assumption. Ultimately, he refused, indicating that he would prefer to have seller pay off the current loan and he would then sign a new agreement with buyer at a different interest rate. On June 17, 2003, Van Lewis indicated that the total amount to pay off the note would be $101,153.19, including a prepayment penalty of $3,090.60.

On June 23, 2003, the ABC transferred the liquor license to buyers brother. Lee kept a log sheet on each escrow. Her log notes on the property escrow for June 24, 2003, indicate, Get ready to close escrow. The next line states, Seller wants to delay [close of escrow]. Lees corresponding entry in the log sheet for the business escrow explains, Seller does want to stay in business for a few weeks. When she bought this business she said she took over more than 2 weeks after ABC transfer. The notes for June 30, 2004, state, Agent still try[ing] to convince seller to close escrow ASAP. There is a similar note in the log sheet for the property escrow.

It appears that, at this point, seller did not want to sell the business to buyers brother. However, the ABC had already transferred the liquor license to him. When seller called the ABC to determine whether she could reverse the transfer, she was informed that it was not reversible. She then concluded that she had to sell the business to buyers brother.

On July 11, 2003, seller agreed to close the business escrow. However, she informed buyer that she wanted to leave the property escrow open until April 2004, after the prepayment period had elapsed on the Van Lewis note. Seller agreed that she would pay off the Van Lewis note and finance the entire $200,000 purchase price for the property herself.^[6] Further, buyer and seller agreed that, while waiting for the property escrow to close, buyer would pay seller $2,000 per month that would be credited against the purchase price of the property. Buyer could have obtained financing from a bank or, apparently, from Van Lewis but he agreed to sellers request to finance the purchase. Buyer agreed with sellers plan to close only the business escrow, but did so with the understanding that the property escrow would eventually close.

The business escrow closed on July 11, 2003. Buyers brother signed a $100,000 note in favor of seller, and seller signed a bill of sale in favor of buyers brother. Final amended escrow instructions were signed, which included the term, The undersigned Buyer(s) acknowledge(s) herein that he/she has months to months lease.^[7]

According to the sellers closing statement, seller was to receive $91,956.71 from the proceeds of the sale. Buyer did not want the funds to be released to seller without some written assurance that she would go through with the sale of the property. On August 19, 2003, seller and buyers brother signed an amendment to the escrow instructions with respect to the business. The amendment stated, in pertinent part: Escrow Holder is hereby directed to release immediately the sum of Sellers proceed[s] to the Seller herein to apply on the total purchase price of $165,000.00. The undersigned acknowledge that this release prior to close of escrow is authorized contingent to close [the] property transaction [identified by escrow number].^[8]

Both buyer and the real estate agent involved in the transaction requested a similar document with respect to the property escrow. Lee prepared an amendment for the property escrow, indicating that escrow would close in April 2004. While the document itself could not be found, Lee testified that both seller and buyer had signed it.^[9] The missing document or another document -- also indicated that buyer would not assume the Van Lewis note and that, instead, seller would finance the entire transaction.^[10]

Unbeknownst to buyer, seller filed a complaint against New Star Escrow with the Department of Real Estate (DRE) with respect to the escrow companys failure to immediately pay her the proceeds from the business escrow.^[11] The DRE complaint was prepared for seller by Eden Noe, her daughter, who was then studying to become an attorney. Sellers DRE complaint contains several material misstatements of fact. For example, it states that buyers brother was the individual who wanted to purchase both the property and the business; there is no mention of buyer in the DRE complaint at all. Sellers DRE complaint, signed under penalty of perjury, further states that buyers brother was short of funds and the bank didnt give him the loan for the entire amount that he asked for. So he could only purchase the business and not the building.^[12] This is incorrect. Buyers brother was never the anticipated purchaser of the property, buyer was. Moreover, buyer could have obtained funds for the purchase of the property; buyer had wanted to close both escrows simultaneously; and it was seller who had refused to close the property escrow. Significantly, seller attached an addendum to the complaint to her DRE complaint, in which she stated that buyers brothers credit was very poor [and] I changed my mind and did not want to sell the building to him, although I did sell the business portion to him. Seller never told buyer that she had changed [her] mind and would not proceed with the property sale; instead, she told buyer that the sale would close in April 2004 and that she would credit his monthly payments against the sale price.

In April 2004, buyer was prepared to close the property escrow as agreed. Seller refused to do so, saying that her daughter was a lawyer.^[13] Buyer attempted to convince seller to close the escrow, but she refused. She demanded the monthly payments increase to $2,500, threatening to kick [him] out if he did not comply.^[14] Buyer stopped paying, and seller then brought an unlawful detainer proceeding in court. To avoid losing the business, buyer became current in his payments.

On September 14, 2004, buyer brought suit against seller, seeking specific performance of the contract to sell him the property. Seller, who was in pro. per., filed an answer to the complaint, in which she specifically denied nearly every fact alleged.^[15] The case proceeded to trial. By this time, Eden Noe had passed the Bar exam, and represented her mother.

A one-day bench trial was held. By the time of trial, buyer had paid $73,000 in monthly payments to seller. Buyer testified that he was financially able to purchase the property, as he had been from the start. Buyer submitted into evidence a current commitment letter from a bank to loan him approximately $130,000 for the purchase of the property. Sellers only witness on her behalf was seller herself; escrow officer Lee testified for buyer. At no point in the trial or argument to the court did seller or her counsel ever mention the words statute of frauds,^[16]nor did they ever argue that specific performance was not an appropriate remedy in this case.

The trial court issued a lengthy statement of decision, ruling in favor of buyer. Specifically, the trial court concluded that: (1) seller chose to postpone the close of the property escrow until April 2004, after the prepayment penalty period had lapsed; (2) buyer and seller agreed to postpone the sale, with buyer to pay $2000 per month to be credited against the purchase price; (3) buyer and Lee testified that seller had signed an escrow instruction postponing the closing to April 2004, while seller denied signing such an instruction; and (4) buyer and Lee gave credible testimony, while sellers testimony was not credible.^[17] While the trial court did not expressly conclude that seller signed an amended escrow instruction postponing the closing to April 2004, it follows from the courts stated findings. The court ordered seller to specifically perform the contract, crediting seller the $73,000 he had already paid toward the purchase price.^[18]

Seller filed objections to the statement of decision.^[19] Sellers objections did not, however, challenge the propriety of specific performance as a remedy.

The trial court did not modify the statement of decision. On May 23, 2006, the court entered judgment for specific performance. The judgment also awarded buyer attorneys fees, but did not indicate an amount. On July 21, 2006, seller filed a timely notice of appeal. On July 25, 2006, the court entered an amended judgment, indicating an award of $65,000 in costs and attorneys fees in favor of buyer. The amended judgment stated that the $65,000 was to be credited to buyer against the purchase price of the property, along with the $73,000 buyer had already paid. In sum, seller was to transfer the property to buyer for an additional $62,000. The judgment was silent as to whether seller was to finance that amount or if buyer was to obtain his own financing.

DISCUSSION

We first address buyers contention that seller failed to provide an adequate record on appeal. We conclude that seller has failed to do so, but we nonetheless reach the merits of the appeal. Next, we conclude that substantial evidence supports the trial courts judgment. Finally, we conclude that several of sellers arguments were not properly raised before the trial court, preventing seller from raising them on appeal. We therefore affirm.

1. Inadequate Record on Appeal

An appellate court begins with the presumption the judgment is correct [citation] and the appellant must prepare a record that adequately establishes the trial court committed prejudicial error. [Citations.] Obviously, . . . the presentation of a record which is clearly insufficient to enable a reviewing court to determine whether or not the trial court was correct in its ruling is not the equivalent of demonstrating that the trial court was in error. (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 122-123.)

In this case, seller and her counsel have chosen to proceed by means of an appellants appendix, rather than a clerks transcript. Attorney Noe included in the appendix some of the exhibits which were before the trial court, but not all of them. Most particularly, Attorney Noe excluded from the appendix the two log sheets that Lee kept for the escrows. These documents were extremely damaging to sellers case, in that they represent contemporaneous written evidence that it was seller, not buyer, who refused to close the escrows, and that seller ultimately agreed to close the business escrow and leave the property escrow open until the prepayment penalty period on the Van Lewis note had passed.^[20] In buyers respondents brief on appeal, buyer argued that sellers failure to include these exhibits, among others, in the appellants appendix constituted a failure to provide an adequate record on appeal. Buyer then provided the missing documents in his respondents appendix.

In her reply brief on appeal, Attorney Noe indicated that the documents had been omitted from the record for various reasons, but not because [seller] did not want to submit a complete record. As to the absence of the log sheets, Attorney Noe explained, The log sheets were not included because they were not part of the escrow instructions.

While we generally overlook an appellants failure to provide an adequate record when the respondent has cured the defect, we cannot remain silent in the face of Attorney Noes cavalier attitude toward her record preparation obligations. The log sheets were admitted into evidence at trial without objection. Had Attorney Noe believed they were not relevant because they were not part of the escrow instructions, she should have objected to them when they were offered into evidence. An attorney cannot allow a document to be entered into evidence without objection and then later pretend it is not part of the record based on her own belief that it is not relevant. Similarly, Attorney Noe omitted from the appellants appendix copies of the monthly checks from buyer and buyers brother. After buyer challenged this omission from the record, Attorney Noe represented that the checks were not included because [they] did not appear [to] rise to the substantial evidence standard. The determination of whether the evidence supporting the trial courts judgment rises to the substantial evidence standard is the issue to be resolved by this court on appeal. Counsel for appellant cannot simply omit evidence from the appellate record based on her own opinion that it was inadequate. However, as buyer has provided the missing documents, we address the merits of the appeal.

2. Substantial Evidence Supports the Trial Courts Decision

When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment. (Scottv. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.) In reviewing the evidence on appeal, all conflicts must be resolved in favor of the judgment, and all legitimate and reasonable inferences indulged in to uphold the judgment if possible. When a judgment is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the judgment. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Western States Petroleum Assn.v. Superior Court (1995) 9 Cal.4th 559, 571; Crawfordv. Southern Pac. Co. (1935) 3 Cal.2d 427, 429.)

The following facts are undisputed: (1) buyer and seller entered into two escrow agreements; (2) with sellers agreement, buyers brother became the purchaser for the market; (3) escrow for the market closed; (4) the two escrows were supposed to close concurrently; (5) as to the property escrow, buyer was to obtain an assumption of the Van Lewis note; (6) Van Lewis refused to approve the assumption; and (7) the escrows did not close concurrently.^[21]

On appeal, seller argues that there was insufficient evidence that she agreed to close the property escrow in April 2004 and to finance the entirety of the transaction herself, with buyers interim payments to be credited against the selling price.^[22] We disagree. Both buyer and Lee testified that seller made these agreements. Sellers agreement to delay the close of the property escrow is confirmed in both the post‑closing addendum to the market escrow instructions, and Lees log notes. In her brief on appeal, seller argues that the evidence is not substantial because these purported agreements were not made in writing. On the contrary, Lee testified that both sellers agreement to postpone the closing of the property escrow and her agreement to finance the transaction herself were in writing.^[23] The fact that neither of these documents were located does not mean they did not exist. Indeed, the loss or destruction of a [written] memorandum does not deprive it of its effect; its contents may be shown . . . by oral evidence. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts,  350, p. 397.)

Once we have found that substantial evidence supports the conclusion that seller executed a written amendment to the escrow instructions postponing the close of the property escrow until April 2004, sellers other arguments on appeal must fail. Seller makes numerous arguments based on the statute of frauds, but the statute of frauds was satisfied by the written amendment.^[24]

3. Arguments Not Raised Before the Trial Court Cannot be Raised
on Appeal

In her brief on appeal, seller argues that specific performance was an improper remedy because she cannot be forced to sell the property for inadequate consideration.^[25] She also argues that sellers agreement to finance the transaction constitutes a personal service contract which cannot be specifically enforced.^[26] (Civ. Code, 3390, subd. 1.) Plaintiff did not raise either of these issues before the trial court.^[27] [E]rrors not raised in the trial court are waived on appeal. (United Services Auto. Assn. v. Dalrymple (1991) 232 Cal.App.3d 182, 185.)

DISPOSITION

The judgment is affirmed. The matter is remanded to the trial court with directions to consider and resolve any motion that may be made by the buyer for attorneys fees with respect to the handling of sellers appeal. (See Commercial Property Purchase Agreement, Exhibit 6, para. 33.) This is an issue which, if buyer makes a proper motion, is appropriately resolved by the trial court in the first instance. Buyer shall recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We concur:

KITCHING, J.

ALDRICH, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] We state the facts in the light most favorable to the judgment. Several times in her briefs on appeal, seller misstates the factual and procedural history of this case. We identify several of these record misstatements.

^[2] The price was actually $365,000 for the property and market, and an additional $35,000 for the inventory.

^[3] The escrow instructions were executed on a California Association of Realtors form document entitled Commercial Property Purchase Agreement and Joint Escrow Instructions.

^[4] In her brief on appeal, seller represents that she was selling the property at a loss, and states that this fact is supported by paragraph 3b in the CAL-FIRPTA Notice and Disclosure statement. The CAL-FIRPTA Notice and Disclosure statement indicates that a buyer of property must withhold 3 1/3% of the sales price of the property under certain circumstances. Paragraph 3 indicates several situations in which no withholding is required. Paragraph 3b indicates that no withholding is required if the seller executes a written certificate under penalty of perjury that she is selling the property at a loss for California Income Tax purposes. As the record includes only the CAL-FIRPTA Notice and Disclosure statement and no certificate of the seller stating that she is selling the property at a loss, the record contains no evidence whatsoever to support this assertion in sellers brief.

^[5] The original escrow instructions imply that the assumption contingency is for buyers benefit, and that if buyer chooses to remove the assumption contingency, he may otherwise proceed with the sale.

^[6] Buyer would have paid seller 9% interest, which is more than seller could have earned from a bank savings account.

^[7] In her Appellants Appendix, seller refers to this document as a Month to Month Lease signed by [buyers brother] On the contrary, the document is not a lease, it is an acknowledgement of a lease, which does not even indicate the amount charged for rent. On appeal, seller suggests that this rent contract was an integrated writing to which the parol evidence rule applies. A written acknowledgement that a lease exists is not itself an integrated rental contract.

^[8] Obviously, this was a release after the close of escrow, not prior to it. Nonetheless, the intent of the parties to confirm that the release of funds was made pursuant to a promise to subsequently close the property escrow is apparent.

^[9] Buyer testified that he did not sign it. He does, however, remember that Lee informed him when seller had signed it.

^[10] Even if the change in financing terms was not included in the agreement to delay close of escrow until after the prepayment penalty period had expired, the elimination of the assumption contingency was necessarily implied by it. There would be no point in postponing the close of escrow until after the prepayment penalty period had lapsed if buyer was still expected to assume the Van Lewis note. The prepayment penalty only had significance if buyer was no longer expected to assume the note.

^[11] Seller signed the complaint on August 12, 2003, but it was not stamped received by the DRE until August 26, 2003.

^[12] Van Lewiss refusal to approve the assumption of the note is nowhere mentioned in sellers DRE complaint.

^[13] Eden Noe was not admitted to practice in California at this time.

^[14] Sellers opening brief states, In July of 2004, [seller] sent a letter to [buyers brother] that she would raise the rent by $500 to $2500 a month and starting from August of 2004, [buyers brother] paid $2500 a month. Attorney Noe cites to page 46 of the reporters transcript and page 131 of the appellants appendix to support this proposition. The reporters transcript cite refers to buyers testimony that he paid seller $2000 per month until he asked her to close the escrow and she g[o]t mad and told him to pay $2500 thereafter. The appellants appendix cite is to three of five money orders from buyers brother to seller for $1000, each dated February 4, 2006. Neither the reporters transcript nor the appellants appendix provide any evidence whatsoever of an alleged July 2004 letter from seller to buyers brother, indicating that rent for the property would be increased.

^[15] In some ways, sellers answer does not read properly against buyers complaint. For example, sellers answer addresses seven causes of action, while the complaint pleads only six. Similarly, sellers answer purports to deny specific allegations in paragraphs 49 and 50 of the complaint, yet the complaint contains only 47 numbered paragraphs. Additionally, specific denials are not responsive to the allegations. For example, paragraph 35 of the complaint alleges, In this case, none of the defendants acted in good faith, nor did they deal fairly. Indeed, each of the defendants took undue advantage of Plaintiff. Sellers answer states, Answering the allegations for paragraph 35 of the complaint, defendant denies that plaintiff suffered any damages. There does not appear to have been an amended complaint filed which would explain the discrepancies.

^[16] In her reply brief on appeal, seller states that she did not plead the statute of frauds in the pleadings. Rather, the statute of frauds was raised during trial . . . . On the contrary, seller asserted the statute of frauds in her answer, but failed to raise it at trial.

^[17] A single example should suffice. Seller stated in her August 2003 DRE complaint that buyers brothers credit was very poor [and she] changed [her] mind and did not want to sell the building to him. Setting to one side the fact that buyers brother was never the purchaser of the property, seller was questioned by buyers counsel as to why she had changed her mind about selling the property. First, seller responded that buyers brother made many late payments to her. When it was pointed out that the market escrow had closed only one month before the DRE complaint, leaving time for few, if any, late payments, seller changed her theory and testified that she had been advised to put that sentence in her DRE complaint by the escrow company (against whom she had filed the DRE complaint). When asked a third time why she had changed her mind in the space of one month and decided not to sell the property, seller stated that the DRE complaint is only a complaint and not legal paper, apparently taking that position that statements she made under penalty of perjury in the DRE complaint have no legal significance. Finally, when questioned by her own counsel, seller testified that she never had any concerns about selling the property to buyer, but that she had not wanted to close escrow on the business because she knew that buyer had failed to obtain an assumption from Van Lewis, which, in her mind, made it impossible to close the property escrow at the same time. Since the escrows were to be closed concurrently, seller testified that she was very concerned that she would be breaking the escrow if she closed the business escrow, and therefore did not want to do so. This, too, fails to explain sellers statement in the DRE complaint that she had sold buyers brother the business, but had changed her mind and did not want to sell the property.

^[18] [I]t is within the equitable power of the trial court granting specific performance to create a setoff against the purchase price for rents paid. (Abadjian v. Superior Court (1985) 168 Cal.App.3d 363, 374.) Seller makes no argument that the setoff was improperly calculated.

^[19] In her reply brief on appeal, seller states that she raised in her objections to the statement of decision that [buyer]s argument that [seller] promised to apply rent payments towards the purchase price of the property violated the statute of frauds. On the contrary, her objections on the matter of this agreement were that the statement of decision: (1) fails to deal adequately and is ambiguous as to the evidentiary basis for the Courts finding of the agreement; (2) fails to deal adequately and is ambiguous as to the Courts finding that the $2000 would be applied to [buyer] when it is [buyers] brother who paid the checks; and (3) fails to deal adequately and is ambiguous as to the issue of [the] parol evidence rule being applied to the issue of lack of evidence to support the finding of the agreement. Sellers objections to the statement of decision raised the statute of frauds only with respect to the escrow amendment to extend the close of escrow and the Courts finding that seller agreed to finance the entire loan. The statute of frauds was not raised with respect to sellers agreement to credit the monthly payments against the purchase price, contrary to the assertion in sellers reply brief.

^[20] In her brief on appeal, seller states, [Buyer] alleged during trial without any written evidence that [seller] orally promised him that she would extend the close of escrow for the property until April of 2004 because she did not want to pay prepayment penalties. Lees log sheet for the property escrow, which Attorney Noe omitted from the appellate record, constitutes written evidence that [s]eller agree[d] to close business, but would like to leave this file open until April 04 (when prepaid penalty period is over).

^[21] On appeal, seller states that it is undisputed that buyer could not close escrow in July of 2003. This is incorrect. Substantial evidence supports the trial courts conclusion that buyer was financially able and willing to close the property escrow when the market escrow closed. Buyer testified that he could have obtained bank financing; Van Lewis appeared willing to enter into a new note with buyer; and Lees log notes indicate that it was seller, not buyer, who refused to go ahead with the transaction in July 2003. Indeed, sellers DRE complaint states that she changed [her] mind and decided not to close the property escrow.

^[22] To the extent seller argues there was no consideration for these modifications, we again disagree. Buyer was prepared to close escrow in July 2003. He agreed to extend the close of escrow to April 2004 for sellers benefit, so that she could avoid the prepayment penalty on the Van Lewis note.

^[23] At oral argument Attorney Noe indicated that Lee had denied the existence of such written agreements. The record demonstrates otherwise. We quote from Attorney Noes cross-examination of Lee:

Q Was there ever an addendum to this to change the owner carrier assumption contingency?

A Sometime in August 2003.

Q That there was this was a change to this amendment?

A Yes.

Q Now, what was the change? Do you recall?

A To it will be owner carried by Amy Kim instead of Van Lewis.

Q And this was regarding the business, or was that regarding the property?

A I believe it was for both of them.

Q So there was an addendum, a change to those escrow instructions that there would be no owner carried assumption contingency and that Amy Kim would give the note to the buyer?

A Instead of Van Lewis carrying the sellers financing that the seller will finance directly to the buyer.

Q Now, where is that document?

A I think I saw the note.

[Questioning continued on the fact that Lee could not find the document.]

Q So youre not sure about this addendum then?

A No.

Q Now, this document that is missing, this addendum Now, was that an addendum? Was that just a note? Was that just a hand note? Or was that an addendum to the escrow instructions, meaning the document

A I I believe it was note.

Q So the change in escrow instructions that you were mentioning about changing the close of escrow date for the property to April 2004 that was a note. It was not an addendum to the escrow instructions.

A No. There was amendment escrow instructions.

Q It was an amendment to the escrow instructions.

A Yes.

Q It specifically changed the date to April of 2004?

A Yes. It doesnt have specific date, but it was a month and year after prepaid penalty period is over.

Q Now, and this document cannot be located; correct?

A Right now, no.

Q Did Amy Kim sign this document?

A Yes.

Q Did Mekonnen Abraha sign this document?

A He came and signed the next day.

^[24] On appeal, seller relies on the statute of frauds and on the requirement of the escrow instructions that all modifications be in writing. To the extent that these issues were not waived by sellers failure to raise them at trial, the oral evidence of the written escrow amendments is sufficient.

^[25] Seller misconstrues the law. It is true that, for specific performance to be ordered, the consideration for the contract must be adequate. (Lakeside Park Assn. v. Keithly (1941) 43 Cal.App.2d 418, 424.) Seller argues that since buyer never deposited into escrow the $100,000 necessary to satisfy the Van Lewis note, the consideration was inadequate. To the contrary, the consideration for the sale of the property was, and is, $200,000. The fact that some or all of this amount was to be paid over time does not prevent it from constituting adequate consideration.

^[26] There appears to be some conflict in the law as to whether a contract to lend money may be specifically enforced. (13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity,  37, p. 331.)

^[27] In her reply brief, seller argues that she did raise the lack of consideration argument at trial. Counsels trial argument that seller did not have sufficient funds to pay off the Van Lewis note unless buyer deposited $100,000 into escrow is not an argument that the property sale lacked sufficient consideration.