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1. Filed 12/6/10 Marina Glencoe v. AMA Construction & Real Estate CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 SIX
MARINA GLENCOE, LP et al.,
Plaintiffs, Cross-defendants and
Appellants,
v.
AMA CONSTRUCTION & REAL
ESTATE, LLC;
Defendant and Respondent;
AMIDI PARTNERS, LLC,
Defendant, Cross-complainant and
Respondent.
2d Civil Nos. B204839,
B207180, B211310
(Super. Ct. No. CIV 231175)
(Ventura County)
Marina Glencoe, LP (Marina) appeals a judgment and an award of attorney's
fees and costs in favor of Amidi Partners, LLC (Amidi) and AMA Construction and Real
Estate, LLC (AMA). We affirm.
Stephen Gaggero appeals an order imposing $12,000 sanctions, payable to
Amidi and AMA, as sanctions for his failure to appear at trial. We affirm.1
FACTS AND PROCEDURAL HISTORY
In 2004, Amidi owned commercial property located at 701 East Santa Clara
Street in Ventura. Rahim Amidhozour, the principal manager of Amidi and an experienced
1
On October 17, 2008, we consolidated the appeals for decision.

2. 2
real estate investor, decided to sell the property when a long-term tenant vacated. On
August 12, 2004, Amidi and a local developer, James Mesa, executed a purchase agreement
on a standard real estate form.
The agreement identified "James Mesa or Assignee" as the buyer. It provided
that "Buyer shall have the right to assign Buyer's rights hereunder, but any such assignment
shall not relieve Buyer of Buyer's obligations herein unless Seller expressly releases Buyer."
The agreement provided for escrow closing on November 16, 2004, and stated
that "[t]ime is of the essence of this Agreement." Paragraph 8.8 provided that escrow would
close on the expected closing date "or as soon thereafter as the Escrow is in condition for
Closing." The agreement contained this provision for extension: "[I]f the Closing does not
occur by the Expected Closing Date and said Date is not extended by mutual instructions of
the Parties, a Party not then in default under this Agreement may notify the other Party,
Escrow Holder, and Brokers, in writing that, unless the Closing occurs within 5 business
days following said notice, the Escrow shall be deemed terminated without further notice or
instructions."
The agreement provided for a sales price of $3,150,000, including a $90,000
deposit and a $1,102,500 down payment. Amidi agreed to finance the balance of the
purchase price for two years. The agreement obligated the buyer to deposit the cash portion
of the purchase price "no later than 2:00 P.M. on the business day prior to the Expected
Closing Date." The seller was obligated to provide to escrow "in time for delivery to buyer
at the Closing" an executed original grant deed, among other documents.
Paragraph 16 of the agreement provided for attorney's fees in the event of
litigation: "If any Party . . . brings an action or proceeding . . . involving the Property, to
enforce the terms hereof, or to declare rights hereunder, the Prevailing Party . . . in any such
proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees."
In October 2004, Mesa requested a 30-day escrow extension. Amidi agreed,
but conditioned the extension upon payment of $20,000. Mesa and the real estate broker for
the transaction paid the additional sum and escrow was extended for 30 days by the parties'
written agreement.

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In November 2004, Mesa informed Amidhozour that he was unable to
complete the purchase of the property. Instead, he proposed entering into a development
agreement with Amidi to build condominiums and offices on the property. On November
17, 2004, Amidhozour met with Mesa to discuss the proposal. The parties discussed
preparing a written development agreement, rescinding the purchase agreement, and
cancelling the escrow.
On December 3, 2004, Mesa sent Amidi an unsigned "Letter of intent for
development agreement at 701 E. Santa Clara Street Ventura CA." The letter set forth the
financial terms and Mesa's responsibilities for the project. Amidhozour executed the letter
on behalf of Amidi and returned it to Mesa. Mesa did not execute the letter nor did he agree
in writing to cancel the escrow.
Meanwhile, Gaggero, an agent for Marina, contacted the escrow officer and
stated that Marina was Mesa's assignee for purchase of the property. The escrow officer
prepared supplemental instructions stating that Marina would take title to the property and
requested Amidi to acknowledge an assignment of Mesa's interest. Gaggero also requested
the escrow officer to prepare an instruction deleting the due-on-sale clause in the purchase
agreement. Gaggero later telephoned Amidhozour and asked if he would agree to the
removal of the due-on-sale clause. Amidhozour responded that he would not.
On December 13, 2004, Amidhozour spoke with Joseph Praske, the general
partner of Marina. Praske stated that he wanted to purchase the property as a tax-deferred
exchange. Amidhozour requested that Praske provide financial information and bank
references and the parties discussed increasing the down payment and the interest rate on the
promissory note.
At the same time, Marina was negotiating to purchase real property in Malibu
as a tax-deferred exchange. On December 16, 2004, Marina terminated the Malibu purchase
agreement, cancelled escrow, and commenced litigation against the seller of that property.
On December 16, 2004, the Santa Clara Street property escrow was due to
close. Marina had not deposited the down payment and Amidi had not submitted its
executed documents. The escrow officer described the situation as "a standoff" because

4. 4
Marina "failed to put their money in" and Amidi "said they weren't going to sign [the
required documents]." The following day, Amidhozour and his attorney inquired of the
escrow officer if she had an executed assignment of Mesa's interest in her file. When she
replied that she did not, Amidhozour cancelled the escrow. On December 20, 2004, Marina
informed escrow that its down payment was ready and available upon Amidi's filing of an
executed grant deed and beneficiary statement with escrow. Amidi did not deposit the
executed documents with escrow. Four months later, on March 28, 2004, Amidi sold the
property to AMA, a related entity, pursuant to the terms of a December 17, 2004 agreement.
On December 28, 2004, Marina filed an action against Amidi seeking specific
performance of the August 12, 2004, purchase agreement, and damages for breach of
contract. Amidi filed a second amended cross-complaint against Marina, Mesa, and
Gaggero, seeking specific performance of the . . . agreement and damages for
misrepresentation, among other remedies. After presentation of Marina's case, Amidi
moved for judgment pursuant to Code of Civil Procedure section 631.8.2
The trial court
granted the motion. Thereafter, Amidi dismissed its cross-action.
The trial court issued a brief statement of decision pursuant to section 632. It
found that the agreed-upon date for close of escrow was December 16, 2004, and that
Marina failed to deposit the down payment and required documents into escrow by the close
of business that day. The court concluded that Marina "failed to timely perform its duties"
and "thus cannot establish that it was ready, willing and able to purchase" the property.
Relying upon our decision in Pittman v. Canham (1992) 2 Cal.App.4th 556, 559-560, the
court determined that neither Marina nor Amidi performed their duties by December 16,
2006, and therefore both parties were discharged from performing. (Ibid. ["The failure of
both parties to perform concurrent conditions during the time for performance results in a
discharge of both parties' duty to perform"].)
The trial court expressly found that there was insufficient evidence of an oral
agreement between Mesa and Amidi to rescind the purchase agreement and that they did not
2
All further statutory references are to the Code of Civil Procedure unless stated otherwise.

5. 5
rescind the agreement by conduct. The court also concluded that the statute of frauds
precluded an oral rescission.
Thereafter, Amidi sought $943,543 in attorney's fees pursuant to Paragraph 16
of the purchase agreement, and nearly $75,000 in costs. Marina opposed the motion. The
trial court directed Amidi to exclude any attorney's fees or costs associated with its cross-
complaint. Amidi later submitted amended statements of attorney's fees and costs. The trial
court thereafter awarded Amidi $538,884 in attorney's fees and $16,876.69 in costs,
allowing only those fees and costs incurred in defense of Marina's complaint. In ruling, the
trial court stated: "The magnitude of these fees is due, in part, to the scorched earth
mentality which prevailed during both discovery and trial. Marina was a willing participant
in this, and has no basis to now complain[] [t]hat the fees are too high."
Sanctions against Gaggero
On May 24, 2007, Amidi served a notice to appear at trial to Gaggero by
mailing the notice to his attorney. (§ 1987, subd. (b).) Gaggero did not appear and on
October 3, 2007, his attorney stated that he did not receive the notice: "I didn't get it, but
I'm not saying they didn't serve it." Counsel explained that Gaggero was then overseas.
The trial court determined that the notice to appear had been served but that
"through some administrative oversight" Gaggero's attorney "was not personally aware of
it." The court added that Gaggero was "a significant witness" regarding Amidi's cross-
complaint. The parties then discussed options to deal with Gaggero's absence. The court
printed a list of the possibilities for the parties to consider, ranging from a mistrial to
imposing money sanctions. The court made no decision that day, however, and trial
continued.
On October 12, 2007, the trial court reconsidered the possibility of sanctions
after Amidi called Gaggero to testify. Gaggero's attorney stated that Gaggero was in
Vietnam and would not be present at trial. The court ruled that sanctions were appropriate
because Gaggero's absence hindered Amidi's proof of its cross-complaint. The court then
imposed $12,000 sanctions against Gaggero, payable to Amidi and AMA.

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Following the imposition of sanctions, Amidi dismissed Mesa as a party to the
cross-complaint, and dismissed three of its causes of action. Five days later, Amidi
dismissed the remainder of the cross-complaint.
Gaggero thereafter moved to vacate the monetary sanctions. The trial court
denied the motion. In a written ruling, the court stated: "The arguments that the sanctions
were inappropriate at the time they were ordered are not new, and do not cause the court to
doubt that its original order was correct. . . . Amidi's presentation of the case was clearly
harmed. . . . Amidi's pragmatic decision not to pursue the cross-complaint was motivated by
the absence of the key witness, exactly the predictable harm that justified the sanctions."
The court also decided that the reporter's transcript provided a clear basis for the sanction
order.
Marina appeals and contends that: 1) the trial court erred by entering a motion
for judgment; 2) the trial court erred by awarding $538,884 attorney's fees to Amidi; and 3)
the trial court abused its discretion by awarding certain costs.
Gaggero appeals and challenges the contempt order imposing monetary
sanctions.
DISCUSSION
I.
Marina argues that the trial court erred by granting a motion for judgment
because the evidence established that it was a ready, willing, and able buyer. Relying upon
Paragraphs 8.3, 8.8, and 15, Marina asserts that the purchase agreement remained
enforceable even after the expected closing date of December 16, 2004. Marina also claims
that Pittman v. Canham, supra, 2 Cal.App.4th 556, is inapplicable because it is
distinguishable.
In particular, Paragraph 8.3 of the agreement authorized the escrow holder "to
conduct the Escrow in accordance with [the] Agreement, applicable law and custom and
practice of the community in which [the escrow] is located." Marina points out that the
escrow officer testified that escrow remained open at time of trial because it had not been

7. 7
cancelled by both parties. Marina adds that the officer testified that under local escrow
custom, the buyer deposits funds after the seller deposits the required documents.
Paragraph 8.8 provides that if escrow does not close on the expected closing
date, "a Party not then in default under this Agreement may notify the other Party, Escrow
Holder, and Brokers, in writing that, unless the Closing occurs within 5 business days
following said notice, the Escrow shall be deemed terminated without further notice or
instructions." Marina points out that after December 16, 2004, it demanded that Amidi
perform its obligations as seller.
Paragraph 15 provides that the parties shall act "diligently and in good faith
. . . to place the Escrow in condition for Closing." Marina points out that it contacted Amidi
on December 13, 2004, and requested a timely closing.
Section 631.8, subdivision (a) provides: "After a party has completed his
presentation of evidence in a trial by the court, the other party . . . may move for a judgment.
The court as trier of the facts shall weigh the evidence and may render a judgment in favor
of the moving party. . . ." The purpose of the section is to enable the trial court to weigh
evidence and make factual findings when it finds that plaintiff's case does not require the
defendant to produce evidence. (Pettus v. Cole (1996) 49 Cal.App.4th 402, 424.) Our
standard of review of the evidence is "the same as if the court had rendered judgment after a
completed trial [i.e.,] . . . the substantial evidence rule applies." (Id. at pp. 424-425.)
The interpretation of a written instrument is a question of law for the court.
(Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865; DVD Copy Control Assn.,
Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 713.) We independently interpret
the purchase agreement because the parties did not offer disputed evidence regarding its
meaning. (Parsons, at pp. 865-866.) Our interpretation must give effect to the mutual
intention of the parties as it existed at the time they entered the contract. (Civ. Code,
§ 1636; Parsons, at p. 865.)
In our independent review, the purchase agreement required the buyer to
deposit the purchase funds by 2:00 p.m. on the day prior to the expected closing date. (Par.
10.3.) The agreement also states that "[t]ime is of the essence of this Agreement." (Par.

8. 8
23.3.) Although Paragraph 8.3 authorized the escrow officer to conduct the escrow in
accordance with local custom, Paragraph 8.1 provides that the agreement constitutes the
agreement of purchase and sale as well as the instructions to the escrow holder. Thus the
specific requirement that the buyer deposit the purchase funds on the day prior to the
expected closing date governs.
Moreover, Paragraph 8.8, permitting "a Party not then in default" to demand
that the other party perform within five days or suffer termination of escrow does not assist
Marina. Among other reasons, the plain meaning of the provision does not extend the
escrow under the agreement; the provision merely allows one party to warn that escrow will
terminate unless the other party performs within five business days. Paragraph 8.8. does not
give a party the unilateral right to demand performance after the time for performance has
passed.
Pittman v. Canham, supra, 2 Cal.App.4th 556 is on point. In Pittman, a real
estate purchase agreement had a clause making time of the essence. Neither party tendered
performance by the closing date. We held that the failure of both parties to tender
performance by the closing date discharged them from performing. (Id. at pp. 559-560.)
"[T]he failure of both parties to perform concurrent conditions does not leave the contract
open for an indefinite period so that either party can tender performance at his leisure. The
failure of both parties to perform concurrent conditions during the time for performance
results in a discharge of both parties' duty to perform." (Ibid.) The factual circumstances of
Pittman are similar to those here, including a time-is-of-the-essence clause.
II.
Marina asserts that the trial court erred by awarding attorney's fees to Amidi
because, in its view, there is no prevailing party in the action. Marina points out that Amidi
dismissed its cross-complaint which alleged in part a contract cause of action. Marina
argues that Amidi did not properly apportion its attorney's fees between defending the main
action and prosecuting the cross-complaint, and that Amidi's second attorney was
unnecessary and duplicative. (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154

9. 9
Cal.App.4th 1337, 1366-1367 ["A court may substantially reduce fees where multiple
counsel represent a party leading to a duplication of effort"].)
In determining whether there is a prevailing party on the contract, the trial
court must compare the relief awarded on the contract claim or claims with the parties'
demands and their litigation objectives as disclosed by pleadings, trial documents and other
sources. (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.) "The prevailing party determination is
to be made only upon final resolution of the contract claims and only by 'a comparison of
the extent to which each party ha[s] succeeded and failed to succeed in its contentions.'"
(Ibid.) A party who is denied direct relief on a claim may nevertheless be found to be a
prevailing party if it is clear that he has otherwise achieved his main litigation objective.
(Id. at p. 877.) If the trial court concludes that a defendant's cross-action on a contract was
"essentially defensive in nature," it may properly find defendant to be a prevailing party
although he does not obtain any relief on his cross-action. (Id. at p. 875, fn. 10.)
Here the trial court properly found Amidi to be the prevailing party because it
defeated Marina's recovery on the contract claim for breach of contract and specific
performance. Although Amidi cross-complained against Marina, Gaggero, and Mesa, the
cross-complaint sought to enforce Mesa's oral contract to rescind the written purchase
agreement and to develop the property with Amidi. Amidi alleged that Marina abandoned
the purchase agreement by failing to fund escrow by December 16, 2004, and by failing to
complete necessary documents. Amidi achieved its litigation objective and its cross-
complaint was "essentially defensive" concerning Marina.
Following the trial court's order that Amidi apportion its attorney's fees and
costs between defending Marina's complaint and prosecuting its cross-complaint, Amidi
submitted a motion and supporting documents seeking $598,884 in attorney's fees. The trial
court expressly found Amidi's apportionment reasonable, but further reduced its fees and
awarded $538,884. The apportionment of attorney's fees is within the discretion of the trial
court. (El Escorial Owners' Assn. v. DLC Plastering, Inc., supra, 154 Cal.App.4th 1337,
1365.) We cannot say the trial court's decision was unreasonable or that Amidi's
documentation and suggested apportionment percentages were insufficient or unreasonable.

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Moreover, Marina misreads our decision in El Escorial Owners' Assn. v. DLC
Plastering, Inc., supra, 154 Cal.App.4th 1337, 1366-1367. The decision does not hold that
the trial court lacks discretion to award attorney's fees to each of the lawyers representing
one party. The decision affirms the trial court's discretion to "substantially reduce fees
where multiple counsel represent a party leading to a duplication of effort." (Ibid.) Here the
trial court found that Marina practiced "scorched earth" litigation; it impliedly found that the
legal services of a second attorney (Amidi's general counsel) were reasonably necessary to
defend the lawsuit.
III.
Marina contends that the trial court abused its discretion by awarding certain
costs. It complains of $2,189,39 travel costs for Amidi's counsel from Northern California,
$745.84 for rental cars, and $20.87 Internet charges, amounting to $2,956.10. Marina also
claims that the cost of $1,065.39 for trial exhibits is improper because Amidi's exhibits were
of little value at trial. (§ 1033.5, subd. (a)(12) [costs of photocopies of exhibits allowable if
reasonably helpful to trier of fact].) Relying upon Carr Business Enterprises, Inc. v. City of
Chowchilla (2008) 166 Cal.App.4th 25, 30, Marina asserts that recovery of $11,000
discovery referee costs is not recoverable because Amidi agreed to share the cost of the
referee. Amidi does not respond to these specific contentions.
Section 1033.5, subdivision (a) sets forth costs recoverable by a prevailing
party. Subdivision (a)(3) allows travel expenses to attend depositions as an allowable cost.
Subdivision (c)(4) permits an award or denial of costs for items not specifically mentioned
in the statute "in the court's discretion." (Gibson v. Bobroff (1996) 49 Cal.App.4th 1202,
1208.) To recover a cost, it must be reasonably necessary to the litigation and reasonable in
amount. (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548.) "Whether a cost item was
reasonably necessary to the litigation presents a question of fact for the trial court and its
decision is reviewed for abuse of discretion." (Ladas v. California State Auto. Assn. (1993)
19 Cal.App.4th 761, 774.)
In an amended memorandum of costs, Amidi requested $49,053.05 in
reimbursement. The trial court allowed $8,332.53 for depositions, $7,152,75 for travel costs

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associated with depositions, $312 for filing fees, $14 for process server fees, and $1,065.39
for trial exhibits, for a total of $16,876.69. The court disallowed all other costs.
The trial court properly allowed deposition travel expenses for Amidi's
Northern California attorney. Section 1033.5, subdivision (a)(3) does not limit deposition
travel reimbursement to attorneys practicing within the trial court's jurisdiction. (Thon v.
Thompson, supra, 29 Cal.App.4th 1546, 1548.) The court also properly allowed cost
reimbursement for each of Amidi's attorneys. Marina practiced "scorched earth" litigation
against Amidi and cannot complain now that Amidi required two attorneys in its defense.
Moreover, the court impliedly found that the rental car and Internet expenses were
associated with the depositions, and that Amidi's trial exhibits were helpful at trial. The
court did not award reimbursement of the discovery referee costs and we do not discuss that
contention.
IV.
Gaggero argues that the trial court lacked jurisdiction to impose sanctions
because it expressly found that neither he nor his attorney knew of the notice to appear
pursuant to section 1987, subdivision (b). The court stated: "[S]ome sanction is appropriate
for Gaggero's failure to attend the trial. The selection of the sanction is mitigated by my
finding that [Gaggero's attorney] was not aware that the order to appear had been issued and
Gaggero was not aware that it had been issued." Gaggero points out that disobedience
"connotes a specific violation of command or prohibition." (Coomes v. State Personnel
Board (1963) 215 Cal.App.2d 770, 775.) Gaggero also asserts that the court lacked
jurisdiction regarding sanctions because Amidi later dismissed its cross-complaint against
him. He reasons that Amidi "is manipulating the system" by seeking sanctions and then
dismissing its cross-complaint.
Although Gaggero and his attorney may not have received notice by the
written notice to appear mailed on May 24, 2007, they received notice from the trial
proceedings on October 3, 2007, 10 days before Amidi called Gaggero as a witness. Indeed,
the trial court printed a list of possible sanctions and provided them to the attorneys for
purposes of discussion. Imposition of monetary sanctions was a listed sanction.

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Moreover, Gaggero's argument that the trial court lacked jurisdiction to
impose sanctions because Amidi later dismissed its cross-complaint against him is specious.
The trial court properly rejected this argument and stated: "[The argument] fails because
Amidi's pragmatic decision not to pursue the cross-complaint was motivated by the absence
of the key witness, exactly the predictable harm that justified the sanctions." In addition, the
court's written order, supported by three pages of reporter's transcript (which it attached),
provides sufficiently specific findings to support the sanctions order.
In view of our discussion, it is not necessary to discuss the parties' remaining
contentions.
The judgment and orders are affirmed. Respondent shall recover costs on
appeal.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
COFFEE, J.
PERREN, J.

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Steven Hintz, Judge
Superior Court County of Ventura
______________________________
Westlake Law Group, David B. Chatfield, Julian A. Simonis; Benedon &
Serlin, Gerald M. Serlin, Douglas G. Benedon for Plaintiffs, Cross-defendants and
Appellants Marina Glencoe, LP and Stephen Gaggero.
Law Office of Michael D. Liberty; Law Office of Kimball J.P. Sargeant for
Defendant, Cross-complainant and Respondent Amidi Partners, LLC, and for Defendant and
Respondent AMA Construction & Real Estate, LLC.