Factual Conclusion Below Was Dispositive.
In Cohen v. Lavi, Case No. B279597 (2d Dist., Div. 3 Oct. 18, 2018) (unpublished), the parties entered into a real estate sale/purchase agreement with a mediation condition precedent clause, namely, fee recovery was not allowable unless a party attempted to resolve the matter through mediation or if a party refused to mediate after a request was made. The buyers encountered water damage, suing the seller for breach of contract, breach of the implied warranty of fitness, negligence, and fraud. Seller answered, asserting an affirmative defense that buyers failed to comply with the mediation provision. Seller eventually won, seeking contractual fees of $187,171.60. The lower court awarded $173,969.95 in fees under the agreement’s fee provision.
On appeal, as they did below, buyers argued that seller refused to mediate. They claimed sending a pre-lawsuit letter which asked buyer to mediate. Seller argued that he never received the letter, corroborated by these other facts: (1) he was never verbally asked to mediate; (2) he indicated willingness to participate in mediation and a settlement conference in his case management statement; and (3) he raised mediation non-compliance as an affirmative defense. Even though the letter never came back to buyers, the presumption of delivery through ordinary mail is rebutted by a denial of receipt by the receiving party. (Bear Creek Master Assn. v. Edwards, 130 Cal.App.4th 1470, 1486 (2005).) Given that the receipt issue was a factual one for the lower court to make, the appellate court could not disturb the result below.