Contents show

Specific Performance California

A specific performance request is one of several common types of contract actions heard in equity, normally at court trial. (Schaefer v. United Bank & Trust Co. of Cal. (1930) 104 Cal.App. 635, 642, cited in 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 120, p. 186.)

Civil Code section 3384 states:

Specific Performance. Except as otherwise provided in this article, the specific performance of an obligation may be compelled.

“As a general rule, in an action for specific performance, in which a court must instruct a party to perform certain acts, the provisions of a contract must be more specific than what is required in an action for damages, in which the court is merely awarding monetary relief. [Fn. omitted].” (Miller & Starr, Cal. Real Estate (3d ed. 2000) § 1:20, p. 60, citing, e.g. Larwin-Southern California, Inc. v. JGB Investment Co. (1979) 101 Cal. App. 3d 626, 636.) Under section 3390, “The following obligations cannot be specifically enforced: . . . (5.) An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.”

“[W]here a party seeks specific performance of a contract for the sale of real property, the terms of the contract must be complete and certain in all particulars essential to its enforcement and must express each material term in a reasonably definite manner [citations]. Although usage or custom may be used to explain the meaning of language or to imply terms [citations], no material element must be left to future
agreement [citation].” (Krasley v. Superior Court (1980) 101 Cal.App.3d 425, 431 (Krasley).)

Buyer’s right to specific performance or replevin

Uniform Commercial Code § 2716

Specific performance may be decreed where the goods are unique or in other proper circumstances.
The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.
The buyer has a right of replevin for goods identified to the contract if after reasonable effort he or she is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered. In the case of goods bought for personal, family, or household purposes, the buyer’s right of replevin vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.

Creation of trust; Specific performance; Trusts arising or extinguished by implication

Civil Code section 1973

(a) Section 1971 shall not be construed to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof.

(b) Section 1971 does not affect the creation of a trust under Division 9 (commencing with Section 15000) of the Probate Code nor prevent any trust from arising or being extinguished by implication or operation of law.

What parties cannot be compelled to perform

Civil Code section 3391 states:

Specific performance cannot be enforced against a party to a contract in any of the following cases:

If he has not received an adequate consideration for the contract;
If it is not, as to him, just and reasonable;
If his assent was obtained by the misrepresentation, concealment, circumvention, or unfair practices of any party to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled; or,
If his assent was given under the influence of mistake, misapprehension, or surprise, except that where the contract provides for compensation in case of mistake, a mistake within the scope of such provision may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced.

Liquidation of damages not a bar to specific performance

Civil Code section 3389

A contract otherwise proper to be specifically enforced, may be thus enforced, though a penalty is imposed, or the damages are liquidated for its breach, and the party in default is willing to pay the same.

When court may enjoin further violations and compel specific performance

Food & Agricultural Code Section 59248

If it appears to the court upon any application for a temporary restraining order, or upon the hearing of any order to show cause why a preliminary injunction should not be issued, or upon the hearing of any motion for a preliminary injunction, or if the court shall find, in any such action, that any defendant is violating, or has violated, any provision of this chapter, any marketing order, or any regulation, or rule and regulation, duly issued by the director pursuant to this chapter, the court shall enjoin the defendant from committing further violations, and may compel specific performance of any obligation imposed by a marketing order, or any regulation which is issued by the director pursuant to this chapter.

Obligations which cannot be specifically enforced

Civil Code section 3390

The following obligations cannot be specifically enforced:

(a) An obligation to render personal service.

(b) An obligation to employ another in personal service.

(d) An agreement to procure the act or consent of the spouse of the contracting party, or of any other third person.

(e) An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.

Specific performance of agreement to sell property

Code of Civil Procedure section 996.560

If an agreement to sell real property affected by the lien created by the filing of a certificate was made before the filing of the certificate and the purchase price under the agreement was not due until after the filing of the certificate, and the purchaser is otherwise entitled to specific performance of the agreement:

(a) The court in an action to compel specific performance of the agreement shall order the purchaser to pay the purchase price, or so much of the purchase price as may be due, to the State Treasurer, and to take the State Treasurer’s receipt for payment.

(b) Upon payment, the purchaser is entitled to enforcement of specific performance of the agreement. The purchaser takes the real property free from the lien created by the filing of the certificate.

(c) The State Treasurer shall hold the payment pending the proceedings referred to in the certificate. The payment is subject to the lien created by the filing of the certificate.

Default on Real Property Purchase Contract

Cal Civ Code § 1680

Nothing in this chapter affects any right a party to a contract for the purchase and sale of real property may have to obtain specific performance.

Default by Lessor

Uniform Commercial Code section 10521

(a) Specific performance may be decreed if the goods are unique or in other proper circumstances.

(b) A decree for specific performance may include any terms and conditions as to payment of the rent, damages, or other relief that the court deems just.

(c) A lessee has a right of replevin, detinue, sequestration, claim and delivery, or the like for goods identified to the lease contract if after reasonable effort the lessee is unable to effect cover for those goods or the circumstances reasonably indicate that the effort will be unavailing.

Cannabis Marketing Contracts

Cal Bus & Prof Code § 26230.1

Notwithstanding any provisions of the Civil Code, a contract that is entered into by a member or stockholder of an association that provides for the delivery to the association of a cannabis product that is produced or acquired by the member or stockholder may be specifically enforced by the association to secure the delivery to it of the cannabis product.

Mutuality Not Required

Cal Civ Code § 3386

Notwithstanding that the agreed counterperformance is not or would not have been specifically enforceable, specific performance may be compelled if:

(a) Specific performance would otherwise be an appropriate remedy; and

(b) The agreed counter performance has been substantially performed or its concurrent or future performance is assured or, if the court deems necessary, can be secured to the satisfaction of the court.