Filed 6/29/26 Thompson v. Goodell CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JOHN ANTHONY THOMPSON,
Plaintiff and Appellant, G064917
v. (Super. Ct. No. 30-2021-
01236291)
TIM GOODELL et al.,
OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County,
Nathan R. Scott, Judge. Reversed and remanded as directed.
Cummins & White, Scott R. Carpenter and Tony J. Cheng; Bruce
Dannemeyer for Plaintiff and Appellant.
Much Shelist and Ryan N. Burns for Defendants and
Respondents.
* * *
Plaintiff John Anthony Thompson rented a home in Newport
Beach (the property), which was owned by the Tim Goodell Irrevocable Trust
(the trust). Defendant Lydia Goodell is the trustee of the trust, and her son,
Tim Goodell, acted on her behalf regarding the property (collectively,
defendants). 1 Thompson and defendants signed an agreement granting
Thompson the option to purchase the property, which could only be exercised
through written notice. Thompson later filed this lawsuit against defendants
for breach of contract. Among other things, he claimed that defendants
accepted his oral exercise of the option but reneged on the deal after the
property’s value substantially increased. Defendants argued that Thompson
had not exercised the option through written notice and had forfeited his
right to purchase the property.
Defendants filed a motion for summary judgment. The trial court
granted the motion, finding it was undisputed Thompson had never provided
written notice exercising the option. It rejected Thompson’s argument that
defendants had accepted his oral exercise of the option. The only evidence
supporting this argument came from Thompson’s declaration (Thompson’s
declaration), which the court found conflicted with his prior deposition
testimony. Due to this perceived conflict, the court disregarded Thompson’s
declaration and found there were no triable issues of fact. Thompson appeals
the resulting judgment.
Thompson contends on appeal that the trial court erred by
disregarding his declaration. We agree. There is a reasonable explanation for
the perceived conflict between the testimony from his declaration and his
1 Since defendants share the same surname, we will refer to Lydia by
her first name. We refer to Tim Goodell by his full name since there is more
than one Tim involved in this lawsuit.
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deposition. When viewing the relevant evidence in the light most favorable to
Thompson, there are questions of fact as to whether Thompson orally
exercised the option and whether defendants accepted this purported
exercise. Summary judgment was improperly granted, and the resulting
judgment is reversed and the matter remanded as directed.
FACTS AND PROCEDURAL HISTORY
I.
INITIAL TENANCY AND PURCHASE DISCUSSIONS
The property is owned by the trust, for which Lydia is the
trustee. Lydia and Thompson entered into a residential lease for the property
on January 16, 2019, which expired on February 29, 2020. After the lease’s
expiration, Thompson remained at the property on a month-to-month basis.
During this time, Tim Goodell had discussions with Thompson
about Thompson purchasing the property. Defendants and Thompson
eventually executed a one-page Real Estate Deposit Agreement on July 31,
2020 (the July 2020 agreement). Under the July 2020 agreement, defendants
“grant[ed] to [Thompson] an exclusive option to purchase the [property]”
subject to three conditions. First, Thompson would pay defendants $100,000
upon signing the July 2020 agreement. It is undisputed he made this
payment. Second, Thompson would provide a verified loan approval letter or
pre-approval letter. Third, Thompson agreed to pay defendants $12,500 in
monthly rent from August 1, 2020 to July 1, 2021.
II.
THE PROPERTY DOCUMENTS
On September 18, 2020, Thompson and defendants executed
several documents concerning the property, which were all on California
Association of Realtors forms (collectively, the property documents). The
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property documents included a new lease agreement (the lease), an option
agreement (the option agreement), a purchase agreement (the purchase
agreement), and several other documents relating to the property’s sale.
A. The Lease
The lease was dated August 2, 2020, but it is undisputed that the
parties signed it on September 18, 2020. Its term expired on July 31, 2021.
Like the July 2020 agreement, it required Thompson to pay defendants rent
of $12,500 per month.
B. The Option Agreement
Like the lease, the option agreement was dated August 2, 2020,
but was signed on September 18, 2020. Thompson paid $50,000 consideration
for the option, which was taken from his prior $100,000 payment under the
July 2020 agreement. If Thompson exercised the option, the property’s sale
would be governed by the purchase agreement, which was expressly
incorporated into the option agreement.
The period to exercise the option ran from August 1, 2020 to July
31, 2021 (the option period). Thompson could “exercise the Option only by
delivering a written unconditional notice of exercise, signed by [Thompson],
to [defendants]” (the written exercise requirement). Thompson was also
required to give a copy of the written notice to Tim Carr, defendants’ real
estate broker. The option would expire without notice if Thompson failed to
comply with the written exercise requirement within the option period.
The option agreement provided that “[a]ll understandings
between the parties are incorporated in this [option agreement]. Its terms are
intended by the parties as a final, complete, and exclusive expression of their
agreement with respect to its subject matter, and may not be contradicted by
evidence of any prior agreement or contemporaneous oral agreement.” The
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option agreement further specified that it could “not be extended, amended,
modified, altered, or changed, except in writing signed by” Thompson and
defendants (the modification clause). (Boldface omitted.)
C. The Purchase Agreement
The purchase agreement set the property’s price at $4 million,
with escrow set to close on August 2, 2021. Thompson would pay for the
property with a $50,000 initial deposit, a $950,000 down payment, and a
$3 million loan.2 The purchase agreement also contained a handwritten note
in a section labeled “OTHER TERMS,” which stated that “[i]f buyer finalizes
purchase by 11/18/20, seller will reduce purchase price to $3,975,000.00.”
The other property documents executed on September 18, 2020,
are immaterial to our analysis.
III.
EVENTS AFTER THE PROPERTY DOCUMENTS
A. Communication Between Thompson and Tim Goodell
Thompson never purchased the property. It is undisputed that
after signing the property documents, Thompson did not deliver a separate
written notice to defendants exercising the option to buy the property.3
According to Thompson’s declaration, he gave Tim Goodell and
Tim Carr oral notice that he was exercising the option when he signed the
property documents. He claimed that when he saw the option agreement on
September 18, 2020, he “told Tim Goodell and Tim Carr that [he] was
2 According to Thompson, the $50,000 initial deposit was also taken
from the $100,000 he had previously paid under the July 2020 agreement.
3 Thompson claims to have exercised the option by signing the purchase
agreement. But that writing occurred concurrently with his signing of the
property documents not after.
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exercising the option to purchase the Property.” Further, Thompson’s
declaration described several text messages that Tim Goodell purportedly
sent Thompson about the property’s sale from late September to mid-October
2020. We will describe these messages in greater detail below, but they
generally concerned escrow and requested updates on Thompson’s attempts
to secure financing for the property’s purchase.
Thompson’s declaration states that he attempted to contact Tim
Goodell to discuss the property’s sale between December 2020 and July 2021,
but Tim Goodell did not return his calls or messages. The two men finally
spoke in person on July 30, 2021. During this conversation, Tim Goodell
purportedly told Thompson that he wanted the property back.
B. Thompson Files This Action
Thompson filed this lawsuit against defendants in December
2021, and filed the operative second amended complaint in November 2022
(the complaint). The complaint generally claimed that defendants reneged on
their agreement to sell Thompson the property after its value substantially
increased. The complaint set forth a single claim against them for breach of
contract, which appeared to be based on two different theories.
First, Thompson asserted that the purchase agreement was an
independent, enforceable agreement that entitled him to purchase the
property for $4 million. Second, Thompson claimed that he had exercised the
option on September 18, 2020, when the parties signed the property
documents. Specifically, he alleged that “[h]e told Tim Goodell and Tim Carr
[on September 18, 2020] that he was exercising the option. He also delivered
written unconditional notice of exercise by delivering to Tim Goodell and his
real estate broker, Tim Carr, the signed Purchase Agreement. Tim Goodell
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[allegedly] understood that Plaintiff had exercised the option. He confirmed
that understanding by signing the Purchase Agreement.”
While this lawsuit was pending, defendants filed a separate
unlawful detainer action against Thompson, which went to trial. The jury in
that case found in defendants’ favor, and Thompson vacated the property.
C. Defendants’ Motion for Summary Judgment
In this action, defendants moved for summary judgment on
Thompson’s breach of contract claim. The trial court granted the motion. It
reasoned, “Defendants showed [Thompson] failed to exercise the option
agreement before it expired.” “There is no dispute the option agreement
provided [Thompson] could ‘exercise the Option only by delivering a written
unconditional notice of exercise, signed by [him], to [defendants]’ and that the
option period expired on 7/31/21.” Thompson “concedes he did not deliver a
signed, written, unconditional notice of exercise to defendant[s] by 7/31/21.”
The trial court also rejected Thompson’s argument that there
were triable issues of fact as to whether (1) he had orally exercised the option,
and (2) defendants had accepted his oral exercise. While Thompson’s
declaration stated that he had orally exercised the option, the court found
this testimony was contradicted by his prior deposition testimony. It
explained that Thompson testified at his deposition that “he ‘exercised the
option on this date, on [September 18], 2020.’[4] [Citation.] When asked ‘How
so,’ he did not mention any oral statement. He instead replied: ‘Because I
signed the Purchase Agreement. Again, that’s my understanding. I signed the
4 Thompson stated at his deposition that he exercised the option on
August 2, 2020, because he signed the purchase agreement on that date. It
appears Thompson misspoke and provided the wrong date. While the
purchase agreement is dated August 2, 2020, it is uncontested that
Thompson and defendants signed it on September 18, 2020.
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Purchase Agreement that day.’ [Citation.] The court may ‘give great weight to
admissions made in deposition and disregard contradictory and self-serving
affidavits of the party.’”
The trial court later entered judgment in defendants’ favor.
Thompson then filed a motion for a new trial, in which he argued that
defendants had unlawfully retained the $50,000 initial deposit he had paid
under the purchase agreement. The court denied the new trial motion.
On appeal, Thompson argues the court erred in granting
summary judgment because there are triable issues of fact as to (1) whether
the July 2020 agreement or the purchase agreement were independent and
enforceable purchase contracts, (2) whether the option agreement was
binding on Thompson, and (3) whether he effectively exercised the option.
Because we agree with Thompson’s third argument, summary
judgment was improperly granted. We do not address his other arguments
because defendants did not move for summary adjudication on any of these
issues below. Nor have they explained on appeal why summary adjudication
would be proper as to any of these other theories. Since summary judgment
was improperly granted, Thompson’s arguments concerning the new trial
motion are moot.
DISCUSSION
I.
STANDARD OF REVIEW
“‘The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact necessary to
resolve their dispute.’ [Citation.] A defendant moving for summary judgment
must show the plaintiff’s causes of action have no merit. It may do so by
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negating an element of a cause of action or showing it has a complete defense
to a cause of action. The burden then shifts to the plaintiff to show a triable
issue of material fact as to the cause of action or defense.” (Ghazarian v.
Magellan Health, Inc. (2020) 53 Cal.App.5th 171, 182 (Ghazarian).)
“The trial court’s decision is reviewed de novo, ‘considering all the
evidence set forth in the moving and opposition papers except that to which
objections were made and sustained.’ [Citation.] The reviewing court
‘liberally constru[es] the evidence in favor of the party opposing the motion
and resolv[es] all doubts about the evidence in favor of the opponent.’
[Citation.] Similarly, ‘any doubts as to the propriety of granting a summary
judgment motion should be resolved in favor of the party opposing the
motion.’” (Ghazarian, supra, 53 Cal.App.5th at p. 182.) A motion for summary
judgment must be denied “‘[w]here the evidence and inferences would allow a
reasonable trier of fact to find the underlying fact in favor of [the opposing
party] in accordance with the applicable standard of proof . . . .’” (Faust v.
California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877.)
II.
EXERCISE OF THE OPTION
There are triable issues of fact as to whether Thompson
effectively exercised the option. In particular, there is evidence from which a
reasonable factfinder could conclude that (1) Thompson orally exercised the
option, and (2) defendants accepted his oral exercise and waived the written
exercise requirement.
A. Oral Exercise
Thompson’s declaration stated that he orally exercised the option
on September 18, 2020. Thompson averred that “[w]hen I saw . . . the Option
Agreement . . . , I told Tim Goodell and Tim Carr that I was exercising the
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option to purchase the Property. It seemed like a meaningless statement
because everyone understood that I was purchasing the Property. . . .
Everyone knew that I had committed to purchasing the Property, that I had
exercised the option.”
The trial court found the above evidence was insufficient to raise
a triable issue of fact because it conflicted with Thompson’s prior deposition
testimony. So, the court disregarded the declaration evidence as
“‘contradictory and self-serving.’” (Quoting Benavidez v. San Jose Police Dept.
(1999) 71 Cal.App.4th 853, 860.) As we discuss below, however, any perceived
conflict between the evidence in Thompson’s declaration and his deposition
can be reasonably explained.
The rule relied on by the trial court arises from D’Amico v. Board
of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico). D’Amico held that
statements in a plaintiff’s declaration that are contradicted by “‘a clear and
unequivocal admission by the plaintiff, himself, in his deposition’” are
insufficient to create “‘a triable issue of fact.’” (Id. at pp. 21–22.) But later
cases have clarified that the D’Amico rule “does not apply where there is a
‘reasonable explanation for the discrepancy’ or ‘countenance ignoring other
credible evidence that contradicts or explains that party’s answers or
otherwise demonstrates there are genuine issues of factual dispute.’” (Mackey
v. Trustees of California State University (2019) 31 Cal.App.5th 640, 658.)
Here, there is a reasonable explanation for the apparent
discrepancy between Thompson’s declaration and deposition testimony. As
seen below, the relevant deposition questions can be interpreted as asking
whether Thompson gave written notice exercising the option.
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Q: “Mr. Thompson, did you ever send a written notice between
August 1 of 2020 and July 31 of 2021, indicating unconditionally that you
intended to exercise the option?” (Italics added.)
A: “I exercised the option on this date, on [September 18, 2020].”
Q: “How so?”
A: “Because I signed the Purchase Agreement. Again, that’s my
understanding. I signed the Purchase Agreement that day.”
Q: “All right. So other than the Purchase Agreement, did you
have a separate Unconditional Notice of Exercise, of exercising this option?”
A: “I didn’t quite understand the question.”
Q: “I asked you about whether you sent an Unconditional Notice of
Exercise of the option as required under section four of this Option Agreement,
and your answer was yes. [¶] And I asked you, how did you do it, and you said
by signing the Purchase Agreement . . . right?” (Italics added.)
A: “Yeah. And it was my understanding I exercised my option
agreement that day.”
Q: “All right. And so then what’s the point of the option
agreement if that’s the case?”
A: “I just thought it was part of what they were having me sign.
There was a lot of trust going there. I mean, you know, they both
congratulated me on buying the house.”
Q: “So it’s your testimony that the only way that you satisfied
paragraph four; right, which requires a written Unconditional Notice of
Exercise, was by signing [the purchase agreement]. Is that true.” (Italics
added.)
A: “That’s true.”
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The trial court correctly observed that Thompson did not mention
orally exercising the option when asked, “[h]ow so?” after claiming he had
exercised it on September 18, 2020. But this question must be examined
within the context of the prior question, which focused on whether Thompson
had given written notice. The above questions all focused on whether
Thompson had given written notice under the option agreement. Thompson
could have reasonably understood the “[h]ow so” question as referring only to
written notice.
Thompson never made “‘a clear and unequivocal admission’” that
he had not orally exercised the option. (See D’Amico v. Board of Medical
Examiners, supra, 11 Cal.3d at pp. 21–22.) He was never asked whether he
had orally exercised the option. Nor was he asked to identify every way he
claimed to have exercised the option. And there is a reasonable explanation
for his failure to mention orally exercising the option during the deposition
questioning above. As such, the trial court should not have disregarded the
evidence in Thompson’s declaration that he orally exercised the option.
(Mackey v. Board of Trustees of California State University, supra, 31
Cal.App.5th at p. 658.)
B. Acceptance of Oral Exercise
Thompson’s purported oral exercise of the option did not comply
with the written exercise requirement. Nor were the option agreement’s
terms amended under the modification clause to allow for oral exercise of the
option. However, there are issues of fact as to whether defendants waived the
written exercise requirement and the modification clause through their words
and conduct.
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1. Applicable law
As to the written exercise requirement, “[t]he acceptance of the
exercise of the option without objection to the form of the exercise waives any
objection to the form of the exercise.” (Collins v. Marvel Land Co. (1970) 13
Cal.App.3d 34, 40.) “If an optionor does not specify the alleged defects in the
tender by the optionee, then a waiver results. [Citation.] The reason for this
rule is that an optionee should be able to remedy any defects in his tender
and prevent the optionor from remaining silent at the time of the tender and
later surprise the optionee with hidden objections.” (Rollins v. Stokes (1981)
123 Cal.App.3d 701, 713.)
Collins v. Marvel Land Co., supra, 13 Cal.App.3d 34, involved an
agreement requiring the plaintiffs to exercise an option through written
notice to purchase land. Though the plaintiffs orally exercised the option, the
defendants still opened escrow and prepared escrow instructions. The
defendants later refused to sell the plaintiffs the property, claiming they had
not exercised the option because they had not given written notice. (Id. at pp.
38–40.) The court rejected this argument at the demurrer stage. It explained
that “even if [the plaintiffs’] notice did not comply with the option clause
governing the mode of exercise, [they] have adequately pleaded facts showing
a waiver of the requirement that the exercise be made in writing.” (Id. at p.
40.) “[The plaintiffs] have alleged that the option agreement was accepted
without reservation although the mode of acceptance was not that stated in
the option contract. Although [the] defendants had the power to require a
written exercise of the option, this requirement was for the benefit of [the]
defendants and may be waived by them.” (Ibid.)
The modification clause could also be waived. “[N]otwithstanding
a provision in a written agreement that precludes oral modification, the
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parties may, by their words or conduct, waive contractual rights. [Citations.]
‘“[T]he pivotal issue in a claim of waiver is the intention of the party who
allegedly relinquished the known legal right.”’ [Citation.] [Citation.] ‘“The
waiver may be either express, based on the words of the waiving party, or
implied, based on conduct indicating an intent to relinquish the right.”’”
(Wind Dancer Production Group v. Walt Disney Pictures (2017) 10
Cal.App.5th 56, 78.) Waiver occurs “‘“‘when a party intentionally relinquishes
a right or when that party’s acts are so inconsistent with an intent to enforce
the right as to induce a reasonable belief that such right has been
relinquished.’ [Citation.]” [Citation.]’ [Citation.] Waiver is ordinarily a
question of fact unless “‘there are no disputed facts and only one reasonable
inference may be drawn.”’” (Ibid.)
2. Evidence in the record
A reasonable factfinder could infer from the evidence that
defendants accepted Thompson’s oral exercise of the option and waived both
the written exercise requirement and the modification clause.
First, Thompson’s declaration contains evidence that Tim Goodell
and his real estate broker, Tim Carr, congratulated Thompson on purchasing
the property after signing the property documents on September 18, 2020:
• When Thompson saw the option agreement on September 18, 2020, he
“told Tim Goodell and Tim Carr that [he] was exercising the option to
purchase the Property. . . . Everyone knew that [he] had committed to
purchasing the Property, [and] that [he] had exercised the option.”
• “On September 18, [2020,] Tim Goodell congratulated [Thompson] on
purchasing the Property. He never said or even intimated that
[Thompson] merely had an option to purchase, the potential to
purchase, or anything similar.”
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• “Tim Carr told [Thompson] that [Thompson] was purchasing the
Property. Like Tim Goodell, he did not say anything that could be
interpreted as uncertainty about whether [Thompson] had committed
to purchasing the Property.”
Second, Thompson’s declaration sets forth text messages from
Tim Goodell to Thompson. It can be inferred from these messages that Tim
Goodell attempted to open escrow after the property documents were signed,
signifying that he believed the sale was occurring. These messages also
indicate that Tim Goodell pushed Thompson to quickly obtain financing to
complete the sale, so Tim Goodell could use the sale proceeds to buy another
property.
• On September 23, 2020, Tim Goodell texted Thompson, “‘Call me about
the escrow . . . there is a problem.’” (Ellipsis in original & boldface
omitted.)
• On September 30, 2020, Tim Goodell texted Thompson, “‘You have an
update? [Thompson], you said you would give Tim carr [sic] your Loan
[sic] person his number. [¶] I need something solid so I can make an
offer on a house, I need to get here full time and have a home for my
son . . . it is not good for him living with my mom. [¶] I have identifie[d]
a house [and] would like to make an offer but I need something solid
from you and you[r] loan guy. [¶] PLEASE!!! I need to get this done for
the sake of my son.’” (Ellipsis in original & boldface omitted.)
• On October 1, 2020, Tim Goodell texted Thompson, stating,
“‘[Thompson], pretty disappointed you didn’t even respond to my text.
I’m pretty much at the end of my rope [Thompson] . . . I need to get
something done now . . . I can’t wait. You told me you’d get more cash to
me and you said they would call Tim Carr . . . none of this has
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happened . . . be been here [sic] 3 weeks. [¶] I want you to have the
house but you’re not helping your situation.’” (Ellipsis in original &
boldface omitted, italics added.)
• On October 13, 2020, Tim Goodell texted Thompson, “‘We talked to
your loan guy and I need to speak to you about it.’ . . . ‘I’m pretty
disturbed by what I heard from your loan guy. So if you blow me off I’m
gonna void the contract and file an eviction notice.’” (Boldface omitted.)
• On October 14, 2020, Tim Goodell texted Thompson, “‘[Tim Carr] is
expecting your call today, I’m gonna move forward if you don’t talk to
him and things don’t change.’” (Boldface omitted.)
It is unclear from the record whether Thompson responded to
these messages. But Thompson’s declaration states that he attempted to
speak to Tim Goodell about the property’s sale numerous times between
December 2020 and July 2021, but Tim Goodell did not respond. Tim Goodell
then told Thompson on July 30, 2021, that he wanted the property back.
Thompson claims he told Tim Goodell that they “had made a deal, and he
should stick with it.” Tim Goodell never “disagree[d] with [Thompson’s]
statement that [he] had purchased the Property, [and] that [they] had a deal.
Tim Goodell just said he wanted the Property back.”
Thompson’s declaration also states that Tim Goodell never told
Thompson “that he had never received a written notice of exercise of option.
If Tim Goodell had mentioned [Thompson] had not yet exercised the option or
had not sent a written notice of exercise, [Thompson] could have remedied by
sending written notice.” But “[e]verything Tim Goodell had done and said
[until July 31, 2020], confirmed [Thompson’s] belief that [he] already had
exercised the option.”
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On appeal, we must liberally construe the above evidence in
Thompson’s favor. (Ghazarian, supra, 53 Cal.App.5th at p. 182.) When doing
so, there are reasonable factual disputes that preclude summary judgment. A
reasonable factfinder could conclude based on the above evidence that
defendants initially accepted Thompson’s oral exercise of the option, waiving
the written exercise requirement and modification clause. But they later
changed their minds and belatedly claimed that he had failed to comply with
the written exercise requirement. Summary judgment was improperly
granted because the evidence and reasonable inferences would allow a trier of
fact to find in Thompson’s favor. (Faust v. California Portland Cement Co.,
supra, 150 Cal.App.4th at p. 877.)
In response, defendants cite evidence indicating that Thompson
did not orally exercise the option, and even if he did, defendants did not
accept it. Their evidence shows that (1) no deed of transfer was ever prepared
for the property, (2) escrow was never opened, (3) the escrow company told
him not to open escrow until the option was exercised, and (4) Thompson did
not attempt to close the sale by November 18, 2020, which would have
reduced the property’s purchase price to $3,975,000. But this argument fails
to show that there are no triable issues of fact. Rather, it underscores that
there is competing evidence that a factfinder must weigh at trial.
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DISPOSITION
The judgment is reversed. On remand, the trial court is directed
to vacate its order granting defendants’ motion for summary judgment and
enter a new order denying it. Thompson is entitled to his costs on appeal.
MOORE, ACTING P. J.
WE CONCUR:
SERVINO, J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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