## Facts

- A trust owned three adjacent Santa Monica parcels: 938, 940, and 944 Pacific Coast Highway.
- A purchase and sale agreement provided that the buyer (identified as the buyer’s stepsister “or her assignee”) would purchase the 938 parcel.
- The purchase agreement made closing contingent on buyer and seller agreeing to identical CC&Rs to be recorded against all three parcels.
- A separate right-of-first-refusal agreement for the 940 and 944 parcels stated it would not become effective until escrow closed on the 938 parcel.
- Over several years, the parties negotiated proposed CC&Rs; escrow on the 938 parcel never closed.
- The original trustee died; the successor trustee refused to proceed with the sale.
- The purported assignee sued for breach of the implied covenant of good faith and fair dealing and sought specific performance and related relief.
- The successor trustee moved for summary judgment, arguing the buyer could not prove he was “ready, willing and able” to purchase and that the CC&R condition had not been satisfied.

## Issues

1. Whether the moving defendant met her initial summary judgment burden to show the plaintiff could not prove he was “ready, willing and able” to perform a real estate purchase contract.
2. Whether triable issues existed regarding (a) the plaintiff’s intent and financial ability to purchase and (b) whether the parties reached agreement on the CC&Rs required as a condition of closing.
3. Whether denial of the plaintiff’s motion for reconsideration required reversal.

## Decision

- The Court of Appeal reversed the summary judgment and remanded.
- The court held the defendant did not carry her threshold burden to negate the plaintiff’s ability to prove financial readiness to perform.
- The court held the record also presented triable disputes about the plaintiff’s intent to complete the purchase and about the existence and terms of any CC&R agreement required for closing.
- Because material factual disputes remained, the case could not be resolved as a matter of law at the summary judgment stage.

## Legal Principles

- Summary judgment is proper only when the moving party establishes entitlement to judgment as a matter of law under Code of Civil Procedure section 437c; the reviewing court considers the record de novo and views evidence in the nonmovant’s favor.
- A party seeking specific performance of a real estate purchase agreement must show he was ready, willing, and able to perform, including financial ability to complete the purchase.
- On summary judgment, the defendant bears an initial evidentiary burden to show the plaintiff cannot establish an essential element (including readiness and ability); the defendant cannot prevail by argument alone or by asking the court to draw disputed inferences against the nonmovant.
- Where contract performance depends on a condition involving negotiated terms (such as CC&Rs), and the evidence permits competing conclusions about whether agreement was reached or whether disagreements were material, the matter presents triable issues for factfinding.

## Conclusion

The appellate court set aside summary judgment because the defendant did not conclusively negate the buyer’s ability to perform and because disputed facts regarding the buyer’s intent and the CC&R condition required adjudication at trial rather than disposition as a matter of law.


Gaggero v. Yura, 108 Cal. App. 4th 884, 134 Cal. Rptr. 2d 313 (Cal. Ct. App. 2003)