party alleging error in California

2016(Lake Almanor Associates L.P. v. Huffman-Broadway Group, Inc. (2009) 178 Cal.App.4th 1194, 1199 [101 *172 Cal.Rptr.3d 71].) “A person cannot be a creditor beneficiary unless the promisor’s performance of the contract will discharge some form of legal duty owed to the beneficiary by the promisee.” (Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394, 400 [ 113 Cal.Rptr. 585 , 521 P.2d 841 ].) In contrast, ‘“[a] person is a donee beneficiary only if the promisee’s contractual intent is either to make a gift to him or to confer on him a right against the promisor.” (Id. at pp. 400-401.) Becau

2016(Lake Almanor Associates L.P. v. Huffman- Broadway Group, Inc. (2009) 178 Cal.App.4th 1194, 1199 .) “A person cannot be a creditor beneficiary unless the promisor‟s performance of the contract will discharge some form of legal duty owed to the beneficiary by the promisee.” (Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394, 400 .) In contrast, “[a] person is a donee beneficiary only if the promisee‟s contractual intent is either to make a gift to him or to confer on him a right against the promisor.” (Id. at pp. 400-401.) Because “[t]hird party beneficiary status is a matter of contract

1941The second proposition urged by defendant will not be considered by us for the reason that he has failed to observe the provisions of rule VIII, section 3 of this court requiring the party alleging error to set forth in his brief, not alone the instructions which it is alleged were erroneously (a) given or (b) refused, but also all instructions bearing upon the subject covered by the given or refused instructions (rule VIII, sec. 3, Rules for the Supreme Court and District Courts of Appeal, 213 Cal. xlvii ; People v. Stone, 19 Cal. App. (2d) 91, 93 [ 64 Pac. (2d) 981 ] ; People v. Ramirez, 21

1937(Rule VIII, sec. 3, p. 10, Rules for the Supreme Court and District Courts of Appeal; People v. Stone, 19 Cal. App. (2d) 91 [ 64 Pac. (2d) 981 ].) Defendants’ final contention may not be urged in this court for the' reason that the proper foundation was not laid in the trial court for review here.

2019Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187 , 1196, 8 Cal.Rptr.3d 517 , 82 P.3d 727 .) *1088 Watkins contends Citibank waived its right to interest by failing to send her monthly statements and by failing to accrue interest between the time it charged off the account and the time it sold the *349 account to Cavalry.

2019Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187 , 1196, 8 Cal.Rptr.3d 517 , 82 P.3d 727 .) *1088 Watkins contends Citibank waived its right to interest by failing to send her monthly statements and by failing to accrue interest between the time it charged off the account and the time it sold the *349 account to Cavalry.

2019Exchange, Inc. (1995) 11 Cal.4th 1 , 31, 44 Cal.Rptr.2d 370 , 900 P.2d 619 .) A waiver can be expressly stated or implied by conduct, but the party alleging a waiver has the burden of proving it by clear and convincing evidence. ( Ibid. ) Whether a party waived a right is a question of fact and, accordingly, we will not reverse the superior court's finding so long as it is supported by sufficient evidence. ( St.

2019Exchange, Inc. (1995) 11 Cal.4th 1 , 31, 44 Cal.Rptr.2d 370 , 900 P.2d 619 .) A waiver can be expressly stated or implied by conduct, but the party alleging a waiver has the burden of proving it by clear and convincing evidence. ( Ibid. ) Whether a party waived a right is a question of fact and, accordingly, we will not reverse the superior court's finding so long as it is supported by sufficient evidence. ( St.

2016First, to be an express third party beneficiary, a person “„need not be named or identified individually,‟” as it is sufficient that the contract shows he or she “„is a member of a class of persons for whose benefit it was made.‟” (Spinks v. Equity Residential Brairwood Apartments (2009) 171 Cal.App.4th 1004, 1023 .) In Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1763 (Soderberg), a mortgage broker 23 engaged in the business of arranging investments in mortgage loans.

1941The second proposition urged by defendant will not be considered by us for the reason that he has failed to observe the provisions of rule VIII, section 3 of this court requiring the party alleging error to set forth in his brief, not alone the instructions which it is alleged were erroneously (a) given or (b) refused, but also all instructions bearing upon the subject covered by the given or refused instructions (rule VIII, sec. 3, Rules for the Supreme Court and District Courts of Appeal, 213 Cal. xlvii ; People v. Stone, 19 Cal. App. (2d) 91, 93 [ 64 Pac. (2d) 981 ] ; People v. Ramirez, 21

1937(Thatch v. Livingston, 13 Cal. App. (2d) 202 [ 56 Pac. (2d) 549 ]; Koeberle v. Hotchkiss, 8 Cal. App. (2d) 634 [ 48 Pac. (2d) 104 ]; Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245 [ 128 Pac. 399 ].) The second and third propositions urged by defendant will not be considered by us for the reason that he has failed to observe the provision of rule VIII of this court requiring the party alleging error to set forth in his brief not alone the instructions which it is alleged were erroneously (a) given or (b) refused, but also all instructions bearing upon the subject covered by the given or refus

1937(Thatch v. Livingston, 13 Cal. App. (2d) 202 [ 56 Pac. (2d) 549 ]; Koeberle v. Hotchkiss, 8 Cal. App. (2d) 634 [ 48 Pac. (2d) 104 ]; Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245 [ 128 Pac. 399 ].) The second and third propositions urged by defendant will not be considered by us for the reason that he has failed to observe the provision of rule VIII of this court requiring the party alleging error to set forth in his brief not alone the instructions which it is alleged were erroneously (a) given or (b) refused, but also all instructions bearing upon the subject covered by the given or refus

1914And when the party who seeks to go behind the stated account, goes into particulars, and specifies the items improperly charged or omitted, he is confined to those items, and the remainder of the account must stmd.” In Carpenter v. Kent, 101 N. Y. 591 , [ 5 N. E. 787 ], the same question was considered and the court said: “We do not think that the defendants had the right to have the whole account opened, but that they were bound by the account actually settled, unless they could show some mistake or fraud in the settlement.

1914And when the party who seeks to go behind the stated account, goes into particulars, and specifies the items improperly charged or omitted, he is confined to those items, and the remainder of the account must stmd.” In Carpenter v. Kent, 101 N. Y. 591 , [ 5 N. E. 787 ], the same question was considered and the court said: “We do not think that the defendants had the right to have the whole account opened, but that they were bound by the account actually settled, unless they could show some mistake or fraud in the settlement.

1867(Weddle v. Stark, 10 Cal. 301 ; Bensley v. Atwill, 12 Cal. 240 ; McCarrity v. Byington, 12 Cal. 432 ; Watson v. Maguire, 17 Cal. 92 ; Mulholland v. Heyneman, 19 Cal. 606 ; Quinn v. Kenyon, 22 Cal. 82 ; Peterie v. Bugbey, 24 Cal. 422 ; Hawkins v. Reichert, 28 Cal. 535 .) The verdict does not accord, in any reasonable manner, with the plaintiff’s evidence of the contents of the lost trunk or with the evidence of her declarations on that subject, and the granting of a new trial under such circumstances cannot he regarded as an abuse of discretion.

1867(Weddle v. Stark, 10 Cal. 301 ; Bensley v. Atwill, 12 Cal. 240 ; McCarrity v. Byington, 12 Cal. 432 ; Watson v. Maguire, 17 Cal. 92 ; Mulholland v. Heyneman, 19 Cal. 606 ; Quinn v. Kenyon, 22 Cal. 82 ; Peterie v. Bugbey, 24 Cal. 422 ; Hawkins v. Reichert, 28 Cal. 535 .) The verdict does not accord, in any reasonable manner, with the plaintiff’s evidence of the contents of the lost trunk or with the evidence of her declarations on that subject, and the granting of a new trial under such circumstances cannot he regarded as an abuse of discretion.

1867(Weddle v. Stark, 10 Cal. 301 ; Bensley v. Atwill, 12 Cal. 240 ; McCarrity v. Byington, 12 Cal. 432 ; Watson v. Maguire, 17 Cal. 92 ; Mulholland v. Heyneman, 19 Cal. 606 ; Quinn v. Kenyon, 22 Cal. 82 ; Peterie v. Bugbey, 24 Cal. 422 ; Hawkins v. Reichert, 28 Cal. 535 .) The verdict does not accord, in any reasonable manner, with the plaintiff’s evidence of the contents of the lost trunk or with the evidence of her declarations on that subject, and the granting of a new trial under such circumstances cannot he regarded as an abuse of discretion.