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Mark Hannum et al v. Veryl Kuchar

March 28, 2012

MARK HANNUM ET AL., PLAINTIFFS AND APPELLANTS,
v.
VERYL KUCHAR, DEFENDANT AND RESPONDENT. MARK HANNUM ET AL., PETITIONERS,
v.
THE SUPERIOR COURT OF PLACER COUNTY, RESPONDENT; VERYL KUCHAR, REAL PARTY IN INTEREST.



(Super. Ct. No. SCV 24886)

The opinion of the court was delivered by: Nicholson , Acting P. J.

Hannum v. Kuchar

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCV 24886)

Plaintiffs Mark and Karen Hannum leased property from defendant Veryl Kuchar with an option to buy the property. The Hannums attempted to exercise the option, but the manner of exercising the option may not have complied with the requirements of the lease agreement. After the Hannums' attempted exercise of the option, Kuchar solicited and received from the Hannums an additional $50,000 towards the purchase price. Then he began proceedings to evict the Hannums, citing what he claims to be the Hannums' noncompliance with the lease agreement.

The Hannums brought this action for specific performance and declaratory relief. Kuchar moved for summary judgment, claiming that the Hannums did not comply with the lease agreement. The Hannums argued that, even if they did not comply with the lease agreement, Kuchar waived the noncompliance by accepting the $50,000 towards the purchase price. The court commissioner hearing the motion for summary judgment, however, rejected the Hannums' waiver argument, stating that it was not pleaded in the complaint. The court entered judgment for Kuchar and also granted Kuchar's motion to expunge a lis pendens the Hannums had recorded against the property.

The Hannums appeal from the judgment and, in a separate proceeding, petition for a writ of mandate to reverse the order granting the motion to expunge the lis pendens. We stayed the order granting the motion to expunge the lis pendens, issued an alternative writ of mandate, and consolidated the cases for argument and decision only.

We conclude that the trial court erred in granting the motion for summary judgment because the facts alleged in the complaint raised a triable issue concerning the Hannums' theory that Kuchar waived any noncompliance with the lease by accepting the $50,000. We therefore reverse the judgment and grant the petition for writ of mandate.

BACKGROUND

The Hannums filed a complaint against Kuchar, alleging causes of action for specific performance and declaratory relief. They alleged that they and Kuchar own adjoining properties and that Kuchar leased his property to the Hannums in November 2002. The lease included an option to buy the property for $385,000 and required the Hannums to exercise the option by November 7, 2007. The monthly payment under the lease was $3,500, and the parties agreed that 95 percent of the monthly payments would be credited to the purchase price.

In September 2004, Kuchar had financial difficulties and asked the Hannums to increase the monthly payments by $1,000, still with 95 percent going to the purchase price. The Hannums orally agreed.

According to the complaint, the Hannums "exercised the option by delivering the prescribed notice . . . on November 7, 2007. [¶] . . . Also in November 2007, defendant Kuchar represented to [the Hannums] that he was undergoing financial difficulties and asked [the Hannums] if they would be willing to make an advance of $100,000 against the purchase price. [The Hannums] were not able to make such an advance, but did advance to [Kuchar] $50,000 . . . on or about November 20, 2007."

Despite the Hannums being at least $49,000 ahead of the payment schedule, Kuchar began proceedings to evict the Hannums from the property.

The complaint alleged that the Hannums "performed all conditions, covenants, and promises required of them except as have been prevented by [Kuchar]" and Kuchar "falsely contended [the Hannums] were required to surrender possession of the premises despite timely exercising their option and complying, in all respects, with the contract."

After Kuchar's answer and the parties' discovery, Kuchar filed a motion for summary judgment. He presented evidence of three ways in which the Hannums did not comply with the contract, justifying his refusal to recognize the Hannums' exercise of the option: (1) the manner of exercising the option, (2) ...


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