Opinion
D057508 Super. Ct. No. GIC838442
12-14-2011
PASQUALE BUONO et al., Plaintiffs and Appellants, v. FRANK GIORGIO et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Steven R. Denton, Judge. Affirmed.
Pasquale Buono and his investment company, California Theatre Investment Group, LLC (CTIG) (collectively plaintiffs), sued James Tondelli, Dale Huntley and others for interference with contractual relations and prospective economic advantage in connection with Buono's failed efforts to develop a hotel and theater complex in downtown San Diego. After a bench trial, the trial court entered judgment against Buono and CTIG.
The other defendants involved in this appeal are Frank Giorgio, Mary Lee Kopesky and Chris-Turn Development, Inc.
Plaintiffs appeal, contending the trial court erred by: (1) failing to consider defendants' interference with plaintiffs' contractual relationship with a third-party investor; (2) finding that Tondelli and Huntley performed no wrongful acts in their individual capacities; and (3) finding there was no independently wrongful conduct to support plaintiffs' claim of intentional interference with prospective economic advantage. We reject these contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Buono's Unsuccessful Efforts to Develop the California Theatre
Buono wanted to acquire the California Theatre in downtown San Diego and develop it into a complex including a theater and high-rise hotel. He did not have the money to fund the project himself and needed investors. Buono formed CTIG, with himself as sole member, and retained an attorney, an architect and other consultants to assist with the financing, acquisition and development of the property.
In June 2003, Buono and some advisors met the owners of the California Theatre to discuss Buono's plans for developing the property. The owners, Investor Money Mortgage, Inc. (IMM) and Presidio Mortgage, Inc. (Presidio) (sometimes collectively Sellers), were represented by their sole shareholders, Huntley and Tondelli, respectively. At the meeting, Buono agreed to buy the California Theatre from Sellers for $6.25 million; an escrow account was opened a week later; and a formal purchase agreement was drafted soon thereafter.
Completion of the transfer of the property was conditioned on approval of Buono's development plans and issuance of appropriate permits by the Center City Development Corporation (CCDC). That approval, in turn, was contingent upon the acquisition of parcels adjacent to the California Theatre, including one owned by Ace Parking Management, Inc. (Ace) and another owned by Henry Furgatch.
Over the next several months, Tondelli negotiated with Furgatch and Ace for the acquisition of their parcels. Tondelli convinced Furgatch to sell his parcel and arranged for Buono to buy the parcel with a loan from a private trust of which defendant Frank Giorgio was the trustee, but he was unable to convince Ace to sell its parcel. Ace did not want to sell because Buono could not guarantee that Ace would get the parking concession for the California Theatre after development was completed.
After the failed negotiations with Ace, and after Sellers unilaterally instructed the escrow holder to cancel the escrow, Buono's attorney became suspicious that Sellers were trying to sell the California Theatre to a third party. In December 2003, CTIG filed a lawsuit against Sellers, alleging anticipatory breach and seeking specific performance of the purchase agreement. The specific performance suit apparently was dismissed in December 2008 for failure to bring it to trial within five years. (See Code Civ. Proc., §§ 583.310, 583.360.)
Although no party disputes these facts, neither the complaint nor the dismissal order is in the record. The little information we have about the specific performance suit is derived from other documents in the record and the trial transcript.
During the pendency of the specific performance suit, Buono solicited investors to provide the financing needed to develop the California Theatre property. Darren Barone, the managing member of Acolapissa, LLC, agreed to provide $6.2 million in financing in exchange for an approximately 73 percent ownership interest in CTIG.
In June 2004, Buono decided to waive the development permit contingency and proceed to close the sale. Acolapissa attempted to wire-transfer $6.06 million into escrow to close the sale of the California Theatre, but the wire transfer was rejected. The sale did not close because all the necessary funds were not in escrow; a portion of CTIG's deposit had been disbursed but not redeposited. The following month, Acolapissa again tried to fund the escrow to complete the sale, but again the sale did not close. Closing did not occur this time because the recordation of a deed in lieu of foreclosure on the California Theatre in favor of Chris-Turn Development, Inc. (Chris-Turn) made CTIG's insurer unwilling to issue a title policy.
Although the record is not entirely clear, it appears that: (1) Chris-Turn and Sellers were partners in a development project in La Quinta, California; (2) Chris-Turn gave Sellers a loan secured by the California Theatre; and (3) when Sellers defaulted on the loan, they gave Chris-Turn a deed to the California Theatre in lieu of foreclosure.
In October 2004, Giorgio started foreclosure proceedings on the Furgatch parcel after Buono missed two payments on the loan from the trust. Tondelli acted as the trustee of the deed of trust upon which the foreclosure was based. To avoid loss of the property, Buono paid the entire amount due on the loan, plus additional fees and costs.
After the attempted foreclosure on the Furgatch parcel and the two unsuccessful attempts to close the sale of the California Theatre, the relationship between Barone and Buono deteriorated. According to Barone, Buono no longer wanted to give Acolapissa a 73 percent ownership interest in CTIG. Buono wanted Barone to put some "skin in the game" by giving Buono the money he needed to stop the foreclosure on the Furgatch parcel and cure the default on the loan from the trust. Barone "didn't want any part of any litigation" and did not provide the funds. Eventually, Acolapissa sued Buono and CTIG to enforce their agreement.
Buono therefore had to find other sources of financing for the California Theatre project. He ultimately negotiated a $7 million bridge loan from Windmill Realty Advisors (Windmill), and CTIG used that money to buy the California Theatre in October 2005. CTIG pledged both the California Theatre and the Furgatch property as security for the loan.
By July 2006, CTIG had defaulted on the loan from Windmill and filed for bankruptcy. Windmill received permission from the bankruptcy court to proceed with foreclosure and sold both the California Theatre and the Furgatch property. As a result, plaintiffs lost their entire investment in the development project. B. The Present Litigation
Plaintiffs sued Tondelli, Huntley and others for intentional interference with contractual relations and intentional interference with prospective economic advantage. According to the operative complaint, Tondelli and Huntley, through various wrongful means and in conspiracy with other defendants, induced IMM and Presidio to delay closing of the sale of the California Theatre to CTIG, and thereby caused plaintiffs to lose income from the fully developed project and to incur substantial additional expenses. Plaintiffs also alleged that Tondelli and Huntley made various misrepresentations and undertook various actions that disrupted beneficial relationships with Acolapissa, Ace and others, and ultimately prevented CTIG from completing the California Theatre development project. Plaintiffs sought more than $7 million in compensatory damages, as well as punitive damages, costs, attorney fees and other relief.
Following a five-day nonjury trial, the trial court announced its decision from the bench. The court reviewed the evidence in detail and stated findings of fact and conclusions of law. Specifically, the trial court found that as to Tondelli and Huntley, the evidence did not establish that any of the wrongful conduct alleged against them "was done in an individual capacity and outside the interests of their respective entities," i.e., Presidio and IMM. The court also found plaintiffs had not demonstrated, by a preponderance of the evidence, that defendants: (1) wrongfully induced any breach of contract or disrupted any contractual relationship; (2) wrongfully interfered with plaintiffs' prospective business advantage; (3) engaged in any "independently actionable conduct" that would support the interference with prospective economic advantage claim; or (4) caused any of plaintiffs' claimed damages.
The parties waived a written statement of decision and stipulated to an oral statement on the record. (See Code Civ. Proc., § 632; Whittington v. McKinney (1991) 234 Cal.App.3d 123, 129-130.)
No party objected to the trial court's oral statement of decision or requested a written statement of decision. The court subsequently entered judgment against plaintiffs and in favor of defendants.
II
STANDARD OF REVIEW
In a nonjury trial, the trial court's statement of decision sets forth its reasoning regarding the disputed issues and is "our touchstone to determine whether or not the trial court's decision is supported by the facts and the law." (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718.) On appeal from the ensuing judgment, we review the trial court's conclusions of law independently and its findings of fact for substantial evidence. (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) We must determine whether the factual findings are supported by substantial evidence (i.e., evidence that is reasonable, credible and of solid value), resolving all conflicts and drawing all reasonable inferences in favor of the judgment. (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 506-507 (Grappo).)And finally, where, as here, no party objects in the trial court to the statement of decision on the ground the statement omitted a finding on a material issue, we imply findings favorable to the prevailing party. (Code Civ. Proc., § 634; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134 (Arceneaux).)
III
DISCUSSION
A. The Trial Court Properly Found No Interference With the Contractual Relationship Between CTIG and Acolapissa
Plaintiffs' primary contention on appeal is that the trial court erred because it improperly focused its analysis on the interference with the purchase agreement between CTIG and Sellers, and did not consider or make any specific findings regarding Huntley and Tondelli's interference with the contractual relationship between CTIG and Acolapissa. According to plaintiffs, Huntley and Tondelli disrupted the CTIG-Acolapissa relationship by preventing the close of the sale of the California Theatre on the two occasions when Acolapissa funded escrow. This, they contend, caused Acolapissa to sue plaintiffs and required CTIG to obtain more expensive financing to complete the sale. Plaintiffs argue that had the trial court analyzed the disruption of the CTIG-Acolapissa contractual relationship, "the ultimate conclusion of the case would have been much different." We disagree.
As a threshold matter, we note that plaintiffs' appellate argument proceeds from a false factual premise. Contrary to their argument, the trial court reviewed in detail the evidence pertinent to plaintiffs' claim that Tondelli and Huntley interfered with the CTIG-Acolapissa relationship. The court specifically stated that the evidence CTIG had many alternative financing sources was "important" to that claim, because the evidence meant Acolapissa's "funds were not necessary for th[e] project to be concluded successfully." Later, when summarizing its findings and conclusions as they applied to all claims against all defendants, the court stated: "There is an absence of any tort causation between the alleged actions of the tort defendants and the claimed damages. Plaintiff[s] acquired the property and then continued to attempt development with various parties with which a number of ancillary disputes arose. It cannot be said with any certainty, and certainly not by any preponderance, whether the defendants' conduct here ultimately in fact caused any of the claimed damages which later events and disputes and economic circumstances had a large part in." The trial court's general finding of no causation applies equally to plaintiffs' specific claim that Huntley and Tondelli disrupted CTIG's contractual relationship with Acolapissa; and, as applied to that particular claim, the general finding means the trial court found that "ancillary disputes" and "economic circumstances" — not anything Huntley or Tondelli did — caused the disruption of the relationship and the alleged losses.
Even if the trial court had not made this express finding, we would presume the court made the finding. A party who does not object in the trial court to the statement of decision forfeits the right to complain on appeal about an omitted issue or a lack of specific findings. (Arceneaux, supra, 51 Cal.3d at pp. 1133-1134.) Thus, where, as here, a statement of decision was not objected to in the trial court, on appeal we imply findings needed to support the judgment. (Ibid.)
The legal effect of this finding disposes of plaintiffs' claim that Huntley and Tondelli intentionally interfered with the contractual relationship between CTIG and Acolapissa, because causation is an essential element of a claim of intentional interference with contractual relations (as well as a claim of intentional interference with prospective economic advantage). (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 391 (Franklin).)Causation is ordinarily an issue of fact for the trier of fact (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666), and we must affirm the trier of fact's resolution of the issue as long as it is supported by substantial evidence (Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 652). To establish causation, a plaintiff must prove that "but for" a defendant's interference, the plaintiff's contractual relationship with a third party would not have been disrupted and plaintiff would not have sustained the alleged losses. (Korea Supply, supra, 29 Cal.4th at pp. 1165-1166; Quelimane, supra, 19 Cal.4th at p. 55; Kasparian v. County of Los Angeles (1995) 38 Cal.App.4th 242, 271 (Kasparian).)Here, plaintiffs suggest substantial evidence does not support the trial court's finding of no causation because they presented evidence they incurred litigation expenses and increased financing costs as a result of Tondelli and Huntley's disruption of CTIG's contractual relationship with Acolapissa. We disagree. As we shall explain, there was substantial evidence from which the trial court reasonably could find that Huntley and Tondelli caused neither the alleged disruption of the CTIG-Acolapissa relationship nor plaintiffs' alleged losses.
The elements of a claim of intentional interference with contractual relations are: (1) a valid contract between the plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55 (Quelimane).)The elements of a claim for intentional interference with prospective economic advantage are the same, except that instead of a contract between the plaintiff and a third party, there must exist between the plaintiff and a third party an economic relationship with the probability of future economic benefit to the plaintiff. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (Korea Supply))
Substantial evidence supporting the trial court's finding of no causation can be found in three aspects of the testimony at trial. First, there was testimony that factors totally independent of any conduct of Huntley and Tondelli actually disrupted the contractual relationship and resulted in litigation between CTIG and Acolapissa: Barone testified that Buono reneged on the promise to give Acolapissa the controlling interest in CTIG for which Acolapissa had contracted, and Buono testified that he demanded that Acolapissa contribute more money to the project than it was contractually obligated to do. Second, there was testimony and other evidence that factors wholly independent of any wrongful act by Huntley or Tondelli prevented the sale from closing with Acolapissa's funds: A deficiency
of funding in June 2004 and a title issue in July 2004. (See part I.A, ante.) Third, there was evidence that Buono did not have to incur increased financing costs when he lost funding from Acolapissa: Both Buono and his attorney testified that CTIG did not even need funding from Acolapissa to close the sale and could have obtained funding from numerous other sources on better terms than Acolapissa offered. This evidence, which consists primarily of testimony from parties and other witnesses directly involved in the matters about which they testified, constitutes substantial evidence. (See Evid. Code, § 411 [testimony of one credible witness generally sufficient to prove fact]; In re Marriage of Mix (1975) 14 Cal.3d 604, 614 (Mix) [testimony of party, even if contradicted, constitutes substantial evidence].)
As plaintiffs point out in their briefing, they offered conflicting evidence on why the sale did not close. For example, Sellers' broker testified that Sellers did not want to close, even though the necessary funds were in escrow, and demanded Buono pay the brokers' commissions. Buono's attorney testified that Sellers demanded an additional $500,000, as well as full releases of claims in the specific performance lawsuit. "It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trial court." (Grappo, supra, 235 Cal.App.3d at p. 507.) On appeal, we must "resolv[e] every conflict in favor of the judgment." (Ibid.)
From the evidence described above, the trial court could find that, regardless of any interference by Huntley or Tondelli with the contractual relationship between CTIG and Acolapissa: (1) CTIG could have obtained cheaper financing to close the sale; (2) the sale would not have closed in June or July 2004; and (3) plaintiffs' relationship with Acolapissa would have broken down in any event. In other words, the trial court could reasonably find that Huntley and Tondelli did not cause either the disruption of the relationship or the damages that allegedly resulted. (See Kasparian, supra, 38 Cal.App.4th at p. 271 [causation requires showing that "but for" defendant's interference losses would not have been sustained].)
Further, since the finding of no causation is supported by substantial evidence, we must uphold it. (Grappo, supra, 235 Cal.App.3d at p. 507.) We must also uphold the dispositive legal conclusion that follows from the finding, namely, that plaintiffs' intentional interference claim failed insofar as it was based on disruption of CTIG's contractual relationship with Acolapissa. (See Ulloa v. McMillin Real Estate & Mortgage, Inc. (2007) 149 Cal.App.4th 333, 338 [defendant not liable in tort for injury he did not cause]; Franklin, supra, 116 Cal.App.4th at p. 394 [affirming summary adjudication of interference with contract claim for defendant when plaintiff did not meet burden on causation]; Kasparian, supra, 38 Cal.App.4th at pp. 271-272 [reversing judgment for plaintiff on claim for interference with prospective economic advantage when there was no evidence defendant's conduct was a "but for" cause of plaintiff's alleged loss].) B. The Trial Court Properly Found There Was No Wrongful Conduct by Tondelli and Huntley in Their Individual Capacities for Which They Are Liable
In their reply brief, plaintiffs assert that Huntley and Tondelli instructed plaintiffs' architect to close its file on the California Theatre development project and not to provide any further services, and contend this is "another example of a contractual relationship which [Huntley and Tondelli] intentionally disrupted." No claim based on disruption of plaintiffs' relationship with their architect was alleged in the complaint or pursued at trial, however. We decline to consider this claim, raised for the first time in plaintiffs' reply brief, because Huntley and Tondelli had no opportunity to respond. (See, e.g., American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)
Plaintiffs also challenge the trial court's finding that the evidence did not establish that any of the wrongdoing alleged against Huntley and Tondelli "was done in an individual capacity and outside the interests of their respective entities," i.e., IMM and Presidio. According to plaintiffs: (1) Huntley was acting as an individual when, as a condition to closing the sale in June 2004, he demanded a personal release from the claims CTIG had asserted in its specific performance suit against Sellers; (2) Tondelli was acting on behalf of Giorgio in the foreclosure on the Furgatch parcel, which was improper and "created significant problems between Buono and Barone who now was very reluctant to put up over $6 million"; and (3) Tondelli was acting as an individual when he spray-painted a message about an unsafe condition on a wall of the California Theatre that caused Ace not to sell its parcel to Buono. As we shall explain, there was substantial evidence from which the trial court reasonably could conclude that none of this conduct interfered with plaintiffs' contractual relations or prospective economic advantage, regardless of the capacities in which Huntley and Tondelli acted.
By lumping three distinct relationships together in this argument, plaintiffs overlook that the capacity in which Huntley and Tondelli were acting is relevant only to the claim of interference with the purchase agreement between CTIG and Sellers. To be liable for interference with the purchase agreement, Huntley and Tondelli would have had to act for their individual interests. If they had acted on behalf of Sellers, they could not interfere as a matter of law, because neither a party nor a party's agent can interfere with the party's own contract. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 24-25.)
With respect to Buono's contractual relationships with Acolapissa and Giorgio and Buono's prospective contractual relationship with Ace, however, Huntley and Tondelli could be liable for interference, regardless of whether they were acting as individuals or as representatives of Sellers. In either capacity, they were "strangers" to the relationships. (See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 (Pacific Gas & Electric) ["a stranger to a contract may be liable in tort for intentionally interfering with the performance of the contract"]; Korea Supply, supra, 29 Cal.4th at p. 1153 [interference with prospective economic advantage requires economic relationship between plaintiff and third party].)
First, with respect to the alleged interference with the contractual relationship between CTIG and Sellers created by the purchase agreement, plaintiffs had to prove, among other things, that Huntley or Tondelli either (1) induced a breach of the purchase agreement (Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 995-996) or (2) made plaintiffs' performance more costly or burdensome (Pacific Gas & Electric, supra, 50 Cal.3d at p. 1129). Since Sellers ultimately performed the purchase agreement, Huntley and Tondelli could not be liable for inducing a breach. (Davis v. Nadrich (2009) 174 Cal.App.4th 1, 10; Dryden, at pp. 995-996.) Thus, they could be liable only if they made CTIG's performance of the purchase agreement more costly or burdensome. But, the only conduct that even arguably could have increased plaintiffs' performance burden was Huntley's demand for a personal release in the earlier specific performance suit and Tondelli's involvement in the Furgatch parcel foreclosure, which plaintiffs contend disrupted the relationship with Acolapissa and required them to defend litigation and obtain more expensive financing. As we explained in part III.A, ante, however, the trial court found Huntley and Tondelli did not cause the disruption or losses, a finding applicable whether they acted as individuals or as Sellers' agents.
Second, with respect to Tondelli's involvement in the Furgatch parcel foreclosure and the effect of those proceedings on plaintiffs' business relationships, the trial court expressly found that two of Buono's payments on the loan from the trust were late and that Giorgio
commenced foreclosure proceedings based upon these late payments. A lender has a right to foreclose under a deed of trust when a borrower defaults in payment (Civ. Code, § 2924; Moeller v. Lien (1994) 25 Cal.App.4th 822, 830); and when a defendant lawfully pursues his own interests, any incidental interference with a plaintiff's contract may be found to be not improper (Quelimane, supra, 19 Cal.4th at p. 56). Hence, regardless of whether Tondelli acted as an individual or as a representative of Presidio under the deed of trust, the trial court properly found that any incidental interference of the foreclosure proceedings with plaintiffs' other existing or prospective contractual relationships concerning the California Theatre development was not improper.
Buono insists he timely made all required payments and "there was no legitimate basis for the foreclosure." He testified at trial he was "current on the payments." Giorgio, however, testified two payments were late. Giorgio's testimony constituted substantial evidence of late payments (Evid. Code, § 411; Mix, supra, 14 Cal.3d at p. 614), and the trial court's resolution of the factual dispute is binding on us (Grappo, supra, 235 Cal.App.3d at p. 507).
Third and finally, with respect to Tondelli's alleged frustration of Buono's attempt to purchase the Ace parcel by purportedly spray-painting a message about unsafe conditions on an outside wall of the California Theatre, the trial court expressly found that the evidence did not prove that Tondelli intended the spray-painting to cause Ace to withdraw from negotiations for the purchase of its parcel or that the spray-painting actually caused Ace to withdraw. These findings are supported by Tondelli's testimony that he did not paint the message and that Ace did not want to sell because CTIG could not guarantee that Ace would get the parking concession after development of the California Theatre. Since Tondelli's testimony constitutes substantial evidence (Evid. Code, § 411; Mix, supra, 14 Cal.3d at p. 614), we must uphold the trial court's findings (Grappo, supra, 235 Cal.App.3d at p. 507). The findings, in turn, defeat plaintiffs' claim that Tondelli interfered with their prospective business relationship with Ace, regardless of whether he acted in his individual or corporate capacity (see Youst v. Longo (1987) 43 Cal.3d 64, 71 [claim requires "proof that it is reasonably probable that the lost economic advantage would have been realized but for the defendant's interference"]). C. The Trial Court Properly Found There Was No Independently Wrongful Conduct to Support Plaintiffs' Claim of Intentional Interference with Prospective Economic Advantage
Plaintiffs also assert Tondelli spray-painted "libelous messages" on interior walls of the California Theatre. They do not explain how these messages interfered with any existing contractual relationship or prospective economic advantage, however. We deem such undeveloped and unsupported arguments forfeited. (E.g., Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)
--------
In their final argument on appeal, plaintiffs attack the trial court's finding that they did not prove any "independently actionable conduct" to support a claim of interference with prospective economic advantage. Plaintiffs acknowledge that to prevail on such a claim, they must prove that defendants' acts were "independently wrongful," i.e., "wrongful by some legal measure other than the fact of interference itself." (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393.) To satisfy this requirement, they must prove that the interfering conduct was "proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard." (Korea Supply, supra, 29 Cal.4th at p. 1159.) According to plaintiffs, they satisfied the wrongfulness requirement because the foreclosure proceedings on the Furgatch parcel violated provisions of the Civil Code. We disagree.
Even if plaintiffs could satisfy all the other elements of their claim of intentional interference with prospective economic advantage, neither of the two statutes on which plaintiffs rely, Civil Code sections 2923.5 and 2924, would support the wrongfulness element. Section 2923.5 was not enacted until 2008 (Stats. 2008, ch. 69, § 2; Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 219), well after Giorgio started to foreclose on the Furgatch parcel in October 2004. Also, that statute applies only to owner-occupied residential real property (Civ. Code, § 2923.5, subd. (i)), but there was no evidence Buono ever lived on the Furgatch parcel. Further, Giorgio's alleged violation of section 2924 for not waiting the required three months after serving the notice of default before serving the notice of sale (see Knapp v. Doherty (2004) 123 Cal.App.4th 76, 92) was inconsequential because there was no foreclosure sale — Buono avoided a sale by paying off the full amount of the loan. Thus, plaintiffs cannot use a violation of either section 2923.5 or section 2924 to support their claim of intentional interference with prospective economic advantage. (See, e.g., LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 342-343 [no independently wrongful conduct for claim of intentional interference with prospective economic advantage based on statutory violations when defendant did not violate statutes].)
DISPOSITION
The judgment is affirmed.
_______________
IRION, J.
WE CONCUR:
_______________
MCDONALD, Acting P. J.
_______________
O'ROURKE, J.