Hoover Community Hotel Development Corp. v. Thomson

• Decision Date: 08 May 1985
• Citation: 213 Cal.Rptr. 750,167 Cal.App.3d 1130
• Parties: HOOVER COMMUNITY HOTEL CORPORATION, Plaintiff and Appellant, v. Michael THOMSON, Joseph Spence, Bruce Gelker, L. Wayne Gertmenian, the Lutheran Church-Missouri Synod, Thomas Butz, the Seeley Company, Thomas E. Taylor, and Patrick F. Grabowski, Defendants and Respondents. Civ. 70057.
• Court: California Court of Appeals Court of Appeals

Page 750

213 Cal.Rptr. 750

167 Cal.App.3d 1130

HOOVER COMMUNITY HOTEL CORPORATION, Plaintiff and Appellant, v. Michael THOMSON, Joseph Spence, Bruce Gelker, L. Wayne Gertmenian, the Lutheran Church-Missouri Synod, Thomas Butz, the Seeley Company, Thomas E. Taylor, and Patrick F. Grabowski, Defendants and Respondents.

Civ. 70057.

Court of Appeal, Second District, Division 7, California.

May 8, 1985.

Review Denied Aug. 14, 1985.

Howard C. Alphson, Santa Monica, for plaintiff and appellant.

Simon, Buckner & Midgal, Scott Simon, Marina Del Rey, for defendants and respondents, Michael Thomson, Joseph Spence, Bruce Gelker and L. Wayne Gertmenian.

Paul, Hastings, Janofsky & Walker, David M. Roberts and Judith L. Meadow, Los Angeles, for defendants and respondents, The Lutheran Church-Missouri Synod and Thomas C. Butz.

Sheppard, Mullin, Richter & Hampton, James J. Carroll III, Los Angeles, for defendants and respondents, The Seeley Co. and Thomas E. Taylor.

EARLY, Associate Justice ^*.

Hoover Community Hotel Development Corporation, plaintiff below, appeals from summary judgments granted to defendants in an action arising out of the refusal of defendant The Lutheran Church-Missouri Synod to sell a parcel of real estate (Parcel M-4) to Hoover on March 30, 1978 and its subsequent alleged sale to defendant Michael Thomson.

Plaintiff has alleged "conspiracy and breach of contract against all defendants," "tortious interference with business relations against all defendants except Church," seeks declaratory relief against all defendants and specific performance against the Church.

Neither in this court nor the trial court has plaintiff contended that the declarations in support of defendants' motions for summary judgment, considered separately, do not establish complete defenses to the complaint. Thus plaintiff has effectively waived any such contention in this court. (Henderson v. Security National Bank (1977) 72 Cal.App.3d 764, 769, 140 Cal.Rptr. 388.) Instead, plaintiff contends that triable issues of fact are created by the declarations and depositions it filed in opposition to the motions.

Hoover does complain, however, that it filed detailed written objections to the declarations submitted by defendants in support of their motions for summary judgment but that the trial court failed to consider them, stating that "I have not considered nor will I rule specifically upon 103 ... evidentiary objections." However, this experienced, esteemed and truly learned trial judge immediately added that "I will only consider legally admissible evidence in connection with any rulings I make." Hoover fails to specify a single evidentiary objection which the trial court should have, but did not sustain to Hoover's prejudice. This failure constitutes a waiver on appeal of any possible error in this respect. (Henderson v. Security National Bank, supra, 72 Cal.App.3d at p. 769, 140 Cal.Rptr. 388 and cases cited therein.)

Hoover desired to purchase Parcel M-4 to develop it jointly with an adjacent site (Parcel M-3) which it had agreed to develop pursuant to a Participation Agreement with the Redevelopment Agency of the City of Los Angeles, California (CRA), executed on August 20, 1971. By an Implementation Agreement which Hoover signed on March 17, 1978 and CRA signed on April 10, 1978 Parcel M-4 was added for the first time to the original site (Parcel M-3) that Hoover agreed to develop for CRA.

Defendant Thomas C. Butz was the business administrator of the Church. Defendant The Seely Company through its employee, defendant Thomas E. Taylor, acted as the Church's broker in selling Parcel M-4. Defendants Bruce Gelker, L. Wayne Gertmenian and S. Joseph Spence are alleged to have tortiously conspired with the other defendants to interfere with Hoover's contract with CRA to develop a site which included Parcel M-4 in direct violation of a contract, the Option Agreement, dated February 29, 1972 between Gelker, Spence and Thomson on one hand and Hoover's predecessor in interest on the other. The Option Agreement was drafted by counsel for Hoover. By Paragraph 7(d) Gelker, Spence and Thomson expressly agree "that they will not for a period of five (5) years, either individually or jointly, or through a partnership, corporation, or other entity or organization, directly or indirectly engage in the development, construction or operation of any improvements within" an area that included Parcel M-4 "which would in any way compete with the operation or development of said Project...." Elsewhere in the Option Agreement the parties thereto recite that they "have heretofore entered into an agreement for the joint development of certain property designated Parcel M-3 in the area known as the 'Hoover Redevelopment Area' herein referred to as the 'Project' " and that Hoover (an entity in which the parties to the option agreement were then "equal shareholders") had entered into a written Participation Agreement dated August 20, 1971 with CRA. That Participation Agreement describes the site to be developed as Parcel M-3 in the Project area, i.e., Parcel M-3A and Parcel M-3B with reference to an attached map which also shows Parcels M-1, M-2, M-4 and M-5. Parcel M-4 is contiguous to Parcel M-3B which separates it from Parcel M-3A.

The Option Agreement also provided in Paragraph 7(a) that Gelker, Spence and Thomson "shall not take any actions ... which would in any way affect the existence or performance of this agreement, [or] the said Participation Agreement...."

The Option Agreement recites that Gelker, Spence and Thomson "further desire to ultimately withdraw from and to grant to [Hoover's predecessor in interest] the right to acquire their position in said Project consistent with the time to time requirements of the CRA and the Participation Agreement at [their] out of pocket costs, expenses, and services." (Italics added.)

The Option Agreement of February 29, 1972 represented a resolution of the efforts of two competing groups each of which desired to acquire and develop Parcel 3-M under contract with CRA. These groups included Hoover's predecessor in interest on one hand and Thomson, Spence and Gelker on the other.

The Option Agreement is silent as to the date of commencement of the covenant not to complete for a five (5) year period in Paragraph 7(d). The agreement was dated February 29, 1972. On the same date the same parties executed escrow instructions designating plaintiff's counsel as escrow holder. The escrow was closed on September 8, 1972.

Appellant states that "the parties intended the covenant to commence on January 30, 1974" which is the date the option was exercised by Hoover. However, defendants contend that it was effective upon execution and delivery of the Option Agreement on February 29, 1972. Defendants rely on the provisions of Civil Code sections 1626, 1654 and 1657 to the effect that a contract in writing takes effect immediately upon its delivery to the party in whose favor it is made, that in cases of uncertainty the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist and that if there is no specified time for the performance of an act under a contract and the act can be performed instantly the time for performance is immediately. The declarations and depositions filed by Hoover in opposition to the motions for summary judgment include no evidence that, during the negotiations for the execution of the agreement, any of the parties expressly stated an intent that the covenant not to compete should not commence to run until the option was exercised on January 30, 1974, or that any defendant subsequently expressed such an understanding.

The Declaration of Glen Arbogast, president of Hoover, filed in opposition to the motion for summary judgment states that "the Option Agreement became effective on September 8, 1972, upon such delivery to Optionee out of Escrow." If true, this admission destroys Hoover's contention that the five (5) year covenant not to compete did not commence to run until the option was executed on January 30, 1974; likewise, it destroys Hoover's contention that the activity of the defendant Thomson of which Hoover complains by which Thomson competed with Hoover for the purchase of Parcel M-4 occurred before the five (5) year period expired. Arbogast also declares that "Thomson first contacted Taylor concerning the Church property [Parcel M-4] sometime between January 10 and 25, 1978"--more than five years later! This statement in the declaration regarding the effective date of the agreement is at best a conclusion of law which is utterly ineffective to raise a triable issue of fact. (C.L. Smith Co. v. Roger Ducharme, Inc. (1977) 65 Cal.App.3d 735, 743, 135 Cal.Rptr. 483; McIvor v. Savage (1963) 220 Cal.App.2d 128, 134, 33 Cal.Rptr. 740.) It is no more than an expression of the declarant's personal opinion to which he could not competently testify (Murphy v. Kelly (1955) 137 Cal.App.2d 21, 28, 289 P.2d 565) and, therefore, it is not sufficient to raise a triable issue of fact.

The declaration also contains several bald conclusions of law that the five (5) year period continued to January 31, 1979; these, of course, cannot create a triable issue of fact. One of the strongest such statements follows:

"It was the purpose and intent of the parties in executing the Option Agrement [sic ] and referring 'to the Participation Agreement, and/or the time to time requirements of the CRA,' that any subsequent Amendment entered into with respect to the Parcel M area, whether by area change or modification in time or other respect, that the continuing covenants of the Option Agreement with respect to interference with the Participation Agreement, and/or the requirements of the CRA or affecting the Option Agreement, or competition within the time limit from the exercise of the option and five (5) years thereafter, i.e., until January 31,...