Filed 1/5/18 Hoffman v. Hafner CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



WILLIAM HOFFMAN,

Plaintiff and Appellant,

v.

ANITA HAFNER, as Trustee, etc.,

Defendant and Respondent.

D071391



(Super. Ct. No. 37-2014-00082651- CU-BC-CTL)


APPEAL from a judgment of the Superior Court of San Diego County, Kevin A. Enright, Judge. Affirmed.
William Hoffman, in pro. per., for Plaintiff and Appellant.
Law Offices of Kevin E. McCann and Kevin E. McCann, for Defendant and Respondent.
On appeal, we are bound by the trial court's credibility determinations. Hence, here, we must accept the trial court's conclusion that plaintiff did not, as required by a contract for the sale of a condominium, deposit $10,000 in earnest money in an escrow account. We also agree with the trial court's legal conclusion that plaintiff's failure to deposit the earnest money relieved the defendant seller of any obligation to complete the sale. Accordingly, we affirm the trial court's judgment in favor of defendant.
FACTUAL AND PROCEDDURAL BACKGROUND
At the time he died in 2011, Robert Hafner owned a modest condominium in
El Cajon, California. The condominium was worth less than the $135,000 owed under an existing note and deed of trust. Title to the condominium was held by Robert Hafner's trust and his sister Anita Hafner (Anita) was the successor trustee under the terms of the trust.
Following her brother's death, Anita attempted to give the holder of the note and deed of trust, HSBC Bank USA (HSBC), a deed in lieu of foreclosure. Initially HSBC was unwilling to take a deed in lieu of foreclosure and Anita contacted an acquaintance who was a real estate broker, cross-defendant Gary Furstenfeld. Furstenfeld advised Anita to list the property for sale with him and attempted to attract an offer acceptable to HSBC.
On December 1, 2012, Anita accepted plaintiff William Hoffman's offer to purchase the condominium for $85,000. The parties' written agreement required that Hoffman deposit in escrow $10,000 in earnest money within three days. The agreement was on a form prepared by Hoffman, who is himself a real estate broker, and stated that "time is of the essence" and required that the escrow close within 30 days.
Shortly after the agreement was signed by Anita, HSBC advised Anita it would not accept less than $107,000 in satisfaction of the note it held. This information was provided to Hoffman. Neither Hoffman nor Anita opened the escrow account required by the parties' agreement and thus the sale did not close within the 30 days required by the agreement. There is a dispute in the record with respect to whether Hoffman attempted to deposit the $10,000 earnest money required by the agreement; we discuss that factual dispute more fully below.
On January 29, 2013, Anita executed a deed in lieu of foreclosure in favor of HSBC and HSBC recorded the deed on March 21, 2013. Thereafter, defendant Immobilier Fund III, LLC (Immobilier) purchased the condominium from HSBC.
After Immobilier acquired title to the condominium, Hoffman filed a complaint against Anita and Immobilier. As against Anita, Hoffman alleged causes of action for breach of contract, slander of title, and quiet title. As against Immobilier, Hoffman alleged causes of action for unjust enrichment, quiet title, specific enforcement, cancellation of an instrument and an accounting.
As we indicated, Hoffman's claims were tried by the trial court without a jury. Following trial, Anita prepared a proposed statement of decision, Hoffman objected to it, and in response to the objections the trial court filed its statement of decision. Briefly, the trial court denied Hoffman any relief on his complaint. The trial court found that Hoffman never deposited the $10,000 earnest money required by the parties' agreement and that his failure to do so within the 30-day term of the agreement relieved Hoffman of any obligation under the agreement. The trial court awarded Anita $101,377.50 in attorney fees because she was the prevailing party and the parties' agreement contained an attorney fees provision.
DISCUSSION
I
In his principal argument on appeal Hoffman attacks the trial court's finding he did not make the earnest money deposit required by the agreement with Anita. He relies on his own testimony, copies of two checks he offered in evidence and a purported e-mail from Furstenfeld, acknowledging receipt of the deposit. For its part, the trial court found Hoffman was not credible and that the checks and e-mail were not genuine. With respect to Hoffman, the court stated: "Hoffman was less than candid." With respect to one of the checks Hoffman offered as proof of payment, the trial court stated: "Ex. 1021 is a copy of a check purporting to be that initial deposit. The Court finds that check was electronically altered." Indeed, Anita offered proof that exhibit 1021 was a copy of a check Hoffman had previously tendered to the California Secretary of State and that it had been "photo-shopped" to indicate it was payment of the earnest money. With respect to the second check Hoffman offered as proof of payment, the trial court stated: "Ex. 1020, which was marked for identification but never admitted into evidence, is a copy of a second check purporting to be the initial deposit. Much testimony was taken about Ex. 1020. Hoffman testified he personally handed the original of Ex. 1020 to a woman who worked for Furstenfeld, the broker for [Anita]. Furstenfeld testified that he never received such a check nor agreed to accept that check for deposit into escrow." With respect to the e-mail Furstenfeld allegedly sent confirming receipt of the deposit, the trial court found that it too was fabricated: "Ex. 1023 is an e-mail from Furstenfeld to Hoffman dated 12-4-12 confirming receipt of Hoffman's check of 12-1-12 in the amount of $10,000 and Contingency Removal One dated 12-3-12. Furstenfeld denied authoring or sending the e-mail. The Court finds Furstenfeld to be credible. The Court finds that Ex. 1023 was electronically altered by Hoffman in order to purport to be something that in truth, it was not."
It is axiomatic that questions of credibility are factual matters left exclusively to the trial court. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.) Thus, we are in no position to overturn the trial court's determination that Hoffman offered no credible proof that he ever made the earnest money deposit required by the parties' agreement. As Anita points out, contrary to Hoffman's argument on appeal, the trial court did not reject electronic forms of evidence; rather it rejected Hoffman's electronic evidence because it found that it had been fabricated.
We also agree that because the agreement required that it close within 30 days, and that by its terms, time was of the essence, Hoffman's failure to meet his payment obligation before the 30-day escrow period expired relieved Anita of any responsibility or liability under the agreement. (Pittman v. Canham (1992) 2 Cal.App.4th 556, 559–560.) Thus, Anita's failure to open an escrow and her agreement with HSBC to give it a deed in lieu after Hoffman failed to make any deposit and to do so following expiration of the 30-day escrow, did not somehow extend the period in which to close the escrow. (Ibid.) As the court in Pittman v. Canham, supra, explained in an analogous situation, in which a buyer argued that the seller's failure to deposit a deed into escrow excused his failure to make any deposit in escrow: "We appreciate the reluctance of a buyer to act first by placing money into escrow. But in a contract with concurrent conditions, the buyer and seller cannot keep saying to one another, 'No, you first.' Ultimately, in such a case, the buyer seeking enforcement comes in second; he loses." (Id. at p. 560.)
II
Hoffman makes a number of other claims which lack merit.
We reject Hoffman's contention that the trial court erred in making an award of attorney fees because, by the time of trial, the Haffner trust had been dissolved. Dissolution of the trust, did not deprive the trustee of the power to wind up the affairs of the trust and recover debts owed to the trust. (Prob. Code, § 15407, subd. (b); Sterling v. Sterling (2015) 242 Cal.App.4th 185, 193–194.)
Hoffman also attempts to challenge an earlier order granting another defendant, Catherine Taylor, her attorney fees on the judgment Taylor obtained from the trial court. The judgment in favor of Taylor is final and no longer subject to review.
Contrary to Hoffman's argument, in a civil proceeding any inadequacy of his counsel in the trial court is not grounds for reversing an adverse judgment. (Chevalier
v. Dubin (1980) 104 Cal.App.3d 975, 978.)
Finally, we find nothing in the record which suggests the trial court was biased or unfair. In particular, the trial judge disclosed, when trial commenced, that he was acquainted on a social basis with the owner of the escrow company, who testified on Anita's behalf. Hoffman did not object to the judge's participation and therefore waived any claim of bias. (See Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337.)
DISPOSITION
The judgment is affirmed. Anita to recover her costs on appeal.


BENKE, Acting P. J.

WE CONCUR:




NARES, J.




IRION, J.