Friday, October 26, 2018
Page 1
Court of Appeal:
Voicemail to Agent to Sell Did Not Constitute Electronic Signature on Sales Agreement
Rarely Invoked ‘Doctrine of Amanuenis’ Not Applied
By a MetNews Staff Writer
A seller’s voicemail authorizing an agent to sign her name to the acceptance of an offer for the purchase of real property was not tantamount, under the Uniform Electronic Transaction Act, to affixing her actual signature on the sales agreement, the Court of Appeal for this district has held, declining to apply the obscure “doctrine of amanuensis” which validates the signature of a surrogate.
The seller, defendant/respondent Suzanne Chandler, left a voicemail message for her property management company’s agent, Gail Anderson, authorizing her to agree to a sale of Chandler’s half interest in a five-bungalow property within walking distance of the future site of the Rams stadium in Inglewood. Chandler, 66, was reluctant to sell the property, purchased more than 50 years ago by her grandmother, but Anderson had convinced her than she could be forced to sell as a result of a potential partition action by the other half-owner (now deceased).
The offer was for $800,000 “as-is.”
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Five bungalows comprise the property which, the Court of Appeal held Wednesday was not the subject of a binding sales agreement because the seller did not sign the contract, rejecting the contention that her agent’s signature sufficed. |
Chandler claimed that Anderson had pressured her into agreeing, in a phone conversation, to sell the property and into the leaving the voicemail message, in part by telling her that there was no time for Chandler to read the agreement and that the opportunity would be lost if not acted upon immediately. Chandler ultimately declined to sell.
The would-be buyer, Frida Dilonell, sued Chandler for violating a sales agreement, signed by Anderson, and petitioned to compel arbitration pursuant to a provision of the agreement.
Los Angeles Superior Court Judge Elizabeth Allen White found that the contract was invalid because the authorization message was not effective. She denied the petition to compel arbitration and ordered a dismissal of the case, as well as awarding Chandler attorney’s fees.
Dilonell’s Appeal
Dilonell appealed the judgment of dismissal, alleging that under the Uniform Electronic Transaction Act (“UETA”), contained in Civil Code §1633.1 et seq., a message on an answering machine qualifies as a signed writing. Justice Victoria M. Chavez wrote Div. Two’s unpublished opinion, filed Wednesday, affirming the judgement.
She wrote:
“[T]he UETA has a several limitations. Significantly, it applies ‘only to a transaction between parties each of which has agreed to conduct the transaction by electronic means.’ ”
The jurist rejected Dilonell’s contention that the agreement between Chandler and Anderson was such a transaction, and that the sale thus fell under the UETA.
“This argument is not persuasive,” Chavez wrote. “In order for the real estate purchase agreement to be valid, appellant and respondent would have to separately agree that respondent would give her consent to the contract by electronic means.”
Dilonell pointed to no such agreement between her and Chandler, Chavez said, and consequently, “the UETA did not apply.”
The jurist added:
“Further, respondent believed that her voice message to Anderson merely started a process which would include respondent’s opportunity to review the agreement and discuss it with Anderson before a final agreement was reached. Thus, the evidence supports a finding that respondent’s voice mail to Anderson did not constitute an intentional ‘electronic signature’ on the purported real property sale contract between appellant and respondent.”
Oral Authorization Ineffective
Chavez also found that Chandler’s authorization to Anderson to sign her name was ineffective, explaining:
“Although Anderson signed respondent’s name to the agreement, the equal dignities rule (Civ. Code, §2309) required Anderson’s authority to do so be in a writing signed by respondent, which respondent had never provided.”
The cited section sets forth:
“An oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing.”
The statute of frauds required that the agreement for the conveyance of real property be in writing, Chavez recited.
Amanuensis ‘Doctrine’ Inapplicable
Addressing the “doctrine of amanuensis,” Chavez said—quoting from the California Supreme Court’s 2002 decision in Estate of Stephens—that it “provides that ‘where the signing of a grantor’s name is done with the grantor’s express authority, the person signing the grantor’s name is not deemed an agent but is instead regarded as a mere instrument or amanuensis of the grantor.’ ”
However, she noted that, under Stephens, the doctrine is subject to a presumption that the signature is invalid where the person signing—the “amanuensis”—will directly benefit from the underlying transfer. Chavez pointed out that Anderson stood to gain a commission from the rental property sale.
She continued:
“The trial court found that Anderson pressured respondent into accepting the offer, at the risk of losing the offer, before respondent even had a chance to review it. Respondent’s declaration supports this factual determination. The trial court found that, based on this evidence, it was Anderson who made the decision to accept the offer and directed respondent to authorize her to sign respondent’s name. Under these circumstances, the doctrine of amanuensis does not apply.”
The opinion in Stephens referred to the amanuensis “rule,” rather than “doctrine.” Whether denominated a “rule”—as it is in one published Court of Appeal opinion and in five unpublished ones—or a “doctrine,” as described in one other unreported opinion, filed in 2012 by this district’s Div. Seven—the concept has been seldom invoked in California or elsewhere.
On June 12, the Court of Appeals of Virginia alluded to the “ancient doctrine of amanuensis.”
Attorney Fee Award
Civil Code §1717, as interpreted by case law, allows for attorney’s fees to be awarded to the prevailing party pursuant to a contract’s terms even when the contract is shown by that party to be invalid.
Accordingly, White looked to the attorney’s fees provision of the invalid contract, which stated:
“In any action, proceeding or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorneys fees and costs from the non-prevailing Buyer or Seller except as provided in Paragraph 31A.”
Paragraph 31A, in turn, held that a party refusing to mediate “shall not be entitled to recover attorney fees, even if they would otherwise be available to that Party in any such action.”
White found that only the party initiating an action was required to mediate, and awarded Chandler $26,400 in fees.
Mediation Provision Bilateral
Chavez responded:
“We disagree with the trial court’s determination that, based on the contract at issue here, only a plaintiff must agree to mediation prior to litigation. The contract at issue provides not only that a party commencing the litigation must first attempt mediation in order to recover attorney fees, but that any party who ‘refuses to mediate after a request has been made’ shall not recover attorney fees. In this case, appellant made a request that respondent mediate. Respondent replied within two hours, rejecting appellant’s request. Respondent’s refusal to mediate bars her from recovering contractual attorney fees under the plain language of the contract.”
The case is Dilonell v. Chandler, B282634.
Judith K. Williams of Studio City argued for Dilonell. Jay J. Plotkin and Nancy O. Marutani of Plotkin Marutani & Kaufman in Encino represented Chandler.
Chandler’s half interest in the property, located at 703 Walnut Ave. in Inglewood, is currently listed on the real estate website Zillow.com as being for sale for $600,000. The listing indicates that Chandler has been forced to sell due to litigation.
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