Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, No. BC343790 Teresa Sanchez-Gordon, Judge.
Rombro & Associates, S. Roger Rombro; Hall, Hieatt & Connely and Mark B. Connely for Cross-complainants and Appellants.
The Sudman Law Center and Michael D. Sudman for Cross-defendant and Respondent Sylvia Ayon Gastinell.
Sedgwick, Detert, Moran & Arnold, Douglas J. Collodel; Carlson Law Group, Mark C. Carlson and Warren K. Miller for Cross-defendant and Respondent Leo Nordine Realtors.
No appearance for Cross-defendants and Respondents City Properties & Investments, LLC, and Craig C. Radden.
No appearance for Cross-defendant and Respondent BGC Enterprises dba Coldwell Banker 1st Class Realty.
KLEIN, P. J.
Cross-complainants and appellants William O. Provin (Provin) and General Installation Company (GIC) (collectively, Provin) appeal judgments of nonsuit in favor of cross-defendants and respondents Leo Nordine Realtors (Nordine); BGC Corporation dba Coldwell Banker 1st Class Realty (Coldwell) and Sylvia Ayon aka Sylvia Gastinell (Gastinell); as well as a judgment in favor of cross-defendants and respondents City Properties & Investments, LLC, a California Limited Liability Company (City Properties) and Craig C. Radden (Radden) (collectively, City Properties).
Coldwell, City Properties and Radden have not filed respondents’ briefs.
Provin’s cross-complaint sought to hold various cross-defendants liable after Provin was sued and successfully defended against an action by City Properties for specific performance. We conclude the claims Provin asserted on his cross-complaint were meritless and affirm the judgments in favor of the various cross-defendants.
FACTUAL AND PROCEDURAL BACKGROUND
Provin owned property from which a family-owned plumbing business, GIC, operated for many years. In 2005, Provin decided to sell the property and signed a listing agreement with Nordine, a real estate broker, to sell the property for $1.2 million.
On October 4, 2005, Nordine obtained an offer from City Properties to purchase the property for $1.25 million. Provin presented City Properties with a counteroffer, which City Properties executed, and the parties opened escrow for $1.25 million.
On November 3, 2005, Nordine was notified that City Properties had decided the property did not meet its needs and that it was seeking to cancel the escrow and recover its $37,500 deposit.
Nordine advised Provin to accept a $1.2 million backup offer from EHOP, Inc., in view of the quality of the backup buyer, a declining market and rising interest rates. Seeking to mitigate damages, Provin accepted EHOP’s backup offer. EHOP wired $120,000 in good faith money and ultimately purchased the property for $50,000 less than the City Properties offer.
We note that although the sale to the backup buyer was for $50,000 less than the amount City Properties was to have paid, the backup buyer paid the full listing price.
On November 4, 2005, the same day Provin signed escrow instructions to enter into the transaction with EHOP, Provin also signed an escrow instruction to obtain City Properties’ deposit under the liquidated damages clause in their real estate purchase agreement. City Properties did not sign the instruction to disburse the deposit to Provin. Instead, City Properties sought to cancel its cancellation and to reopen the escrow. By that time, Provin already was in escrow with EHOP, the new buyer, which had made its deposit.
1. Proceedings.
a. City Properties’ complaint against Provin.
On December 1, 2005, City Properties filed suit against Provin and recorded a lis pendens. The complaint sought specific performance of the real estate purchase agreement. The complaint also included a common count seeking recovery of City Properties’ $37,500 deposit.
The lis pendens subsequently was expunged by court order, enabling the sale to EHOP to close.
b. Provin’s cross-complaint against City Properties and others.
Provin and GIC filed a cross-complaint against various defendants, including: City Properties and Radden, individually and doing business as City Properties; Provin’s broker, Nordine; City Properties’ broker, Coldwell; and Gastinell, a real estate agent working for Coldwell. The cross-complaint, which ended in judgments in favor of the various defendants, is the subject of the instant appeal.
c. Provin obtains summary judgment on the complaint filed against him by City Properties.
Provin moved for summary judgment on City Properties’ complaint, contending the real estate purchase agreement was a nullity because of the conduct of its agent, one Alberto Canillas, who was unlicensed. Although the escrow instructions identified Gastinell, in fact Canillas was the primary agent for City Properties in the transaction.
On September 15, 2008, the trial court granted summary judgment in favor of Provin on City Properties’ complaint, ruling that City Properties’ complaint was predicated on a contract which was unenforceable and void because the contract was negotiated and signed on behalf of City Properties by Canillas, who was not duly licensed.
The trial court awarded Provin $170,000 in attorney fees as an item of costs in defending against the complaint brought by City Properties.
d. Trial on the cross-complaint.
On October 7, 2008, jury trial commenced on the cross-complaint and concluded in judgments in favor of the various cross-defendants.
(1) Grant of nonsuit in favor of Nordine.
As against Nordine, Provin’s cross-complaint pled negligence, based on Provin’s alleged failure to exercise ordinary skill and prudence “in connection with the PURCHASE AGREEMENT and sale of the SUBJECT PROPERTY.”
After Provin presented his case-in-chief at trial, Nordine made a motion for nonsuit, contending that in view of the trial court’s earlier ruling that the Provin/City Properties transaction was void ab initio due to Canillas’s unlicensed status, no contract existed between the buyer and the seller, and Nordine did not owe a duty in a transaction which was legally unenforceable.
Nordine further contended that none of Provin’s damages, if any, were caused by Nordine’s conduct. Nordine argued that none of its actions or inactions “had anything to do with the fact that [City Properties] breached the purchase agreement with Provin.”
The trial court granted Nordine’s nonsuit motion, finding that Provin and GIC had failed to introduce evidence sufficient to prove a prima facie case against Nordine for negligence.
(2) Grant of nonsuit in favor of Gastinell and Coldwell.
Gastinell and Coldwell also sought nonsuit at the conclusion of Provin’s case-in-chief. Gastinell and Coldwell contended, inter alia: Provin failed to submit sufficient evidence to state a prima facie case against them; there were no grounds for indemnification because there was no contract between Provin and Coldwell providing for indemnification; Provin failed to present any evidence of a duty owed by Coldwell or that breach of any such duty caused Provin any damages; Provin failed to show that Canillas was an agent for Coldwell, that Coldwell made any false representations to Provin upon which he relied, or that any such misrepresentations by Coldwell caused him damage.
The trial court granted the motion for nonsuit by Gastinell and Coldwell, finding “the evidence presented by Provin fails to constitute a prima facie case against [Coldwell] for indemnity, negligence, fraud and declaratory relief.”
(3) Entry of judgment in favor of City Properties.
Provin’s cross-complaint also included a cause of action against City Properties and Radden (collectively, City Properties) for intentional interference with prospective economic advantage. City Properties filed an answer to the cross-complaint.
However, City Properties did not appear at the trial on the cross-complaint. In the midst of trial, Provin’s counsel requested that the court enter City Properties’ default and allow Provin to prove up the damages. The trial court stated, “I’m not going to allow that right now. I need for you to move accordingly in seeking default. And then set it up for a prove up hearing or by declaration.”
Because City Properties had answered the cross-complaint, Provin’s request for entry of its default was meritless. “ ‘Where the defendant who has answered fails to appear for trial, “the plaintiff’s sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff’s cause of action.” ’ ” (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 863.)
On October 17, 2008, Provin filed a trial brief in support of its motion for judgment on the interference claim against City Properties, supported by the declarations of Provin and Tammy Ross-Stern, CPA. The papers contended Provin and GIC suffered a loss of at least $147,500 “as a result of the time that he had to focus on addressing the conduct of Radden and [City Properties], and he suffered as a result of the time directed in defeating the lawsuit [brought against him by City Properties] which he would have otherwise devoted to the business enterprise.”
The interference claim was adjudicated by the court without a jury following the filing of declarations, the lodging of deposition transcript, and argument by means of a memorandum of points and authorities. On September 15, 2009, the trial court rendered judgment in favor of City Properties and Radden on the cross-complaint.
(4) Appeals.
Provin timely appealed the judgments of nonsuit in favor of Nordine, Gastinell and Coldwell, as well as the judgment in favor of City Properties and Radden. All the appeals have been consolidated under B214790.
CONTENTIONS
Provin contends: the trial court erred in granting nonsuit in favor of Nordine and Gastinell and a new trial should be granted; if Provin’s evidence was insufficient to withstand nonsuit, the trial court erred in excluding relevant evidence and testimony that would have overcome a nonsuit in favor of Nordine and Gastinell based on an erroneous understanding of the legal effect of Provin’s summary judgment against City Properties; and the trial court erred in granting judgment in favor of City Properties and against Provin on his cross-complaint for intentional interference with prospective business advantage.
DISCUSSION
1. Standard governing appellate review of nonsuit.
As we stated in Claxton v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327, 334 (Claxton), “[b]ecause a successful nonsuit motion precludes submission of plaintiff’s case to the jury, courts grant motions for nonsuit only under very limited circumstances. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117.) A court may not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff’s favor. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838 (Carson); DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1505-1506 (DiPalma).)”
In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give to the plaintiff’s evidence all the value to which it is legally entitled, indulging every legitimate inference which may be drawn from the evidence in plaintiff’s favor. (Claxton, supra, 108 Cal.App.4th at p. 334.)
On appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law. (Claxton, supra, 108 Cal.App.4th at p. 335.)
Although a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is some substance to plaintiff’s evidence upon which reasonable minds could differ. Only the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit. (Claxton, supra, 108 Cal.App.4th at p. 335.)
2. Trial court properly granted nonsuit in favor of Nordine.
a. Provin’s theory as against Nordine.
Provin’s theory as Nordine is as follows: After City Properties cancelled escrow, Nordine violated his duties to Provin. Nordine did not initially tell Provin that City Properties had retained a lawyer and was threatening to sue, or that City Properties had requested mediation over the return of the $37,500 deposit. Rather, without Provin’s knowledge or authorization, Nordine told City Properties’ attorney, Mark Branner, to go ahead and sue Provin, while at the same time Nordine told Provin there was nothing to worry about because any disputed matter would be mediated or arbitrated. In response, City Properties sued Provin and filed a lis pendens on the property, requiring Provin to expend $170,000 in attorney fees to defeat City Properties’ action.
Provin contends that had Nordine duly informed him, “he would have agreed to mediate the dispute over the deposit and avoided the lawsuit....”
b. The state of the record.
Provin’s testimony at trial established the following: In November 2005, Nordine informed Provin he had received a letter or verbal transmission indicating City Properties was threatening or discussing a lawsuit. Nordine apprised Provin about his communications with City Properties’ representatives in which Nordine indicated the buyer was in breach of contract. Toward the end of November 2005, Nordine told Provin he had a conversation with the attorney for City Properties. Provin was aware that Nordine was “bickering with the other agent” regarding City Properties’ breach of contract. Provin spoke with Nordine regarding City Properties’ breaches, and during the final conversation on November 29 or 30, the two discussed the possibility of Provin being involved in lis pendens litigation concerning the property. Provin also discussed with Nordine the real estate purchase agreement’s mediation and binding arbitration provision that would keep disputes out of litigation. Provin admittedly was aware of the “mediation and binding arbitration clauses in the contract that would settle this without litigation.” Provin testified that before leaving town, he told Nordine “[i]f there is litigation, I will address it with an attorney. Or a threat of litigation, ” and “[i]f there was a problem with pending litigation, that I would get an attorney when I got back into town and we would address it.”
The testimony by Provin, set forth above, disposes of his claim that Nordine was negligent for not advising Provin about City Properties’ threatened litigation. Provin was well aware of the contractual provisions re alternative dispute resolution, and knew of the potential for litigation. Moreover, once City Properties filed suit, Provin’s attorney attempted, albeit unsuccessfully, to get the dispute into mediation. Therefore, Provin cannot attribute the lawsuit brought by City Properties to any alleged miscommunication by Nordine.
Provin also faults Nordine for telling him there was nothing to worry about because any disputed matter would be mediated or arbitrated. However, the listing agreement between Provin and Nordine states the broker “is the person qualified to advise on real estate transactions” and “if you desire legal or tax advice, consult an appropriate professional.” In response to the lawsuit brought by City Properties, Provin did just that – he retained counsel to defend him and to expunge the lis pendens.
We conclude Nordine is not liable for City Properties’ decision to file a meritless specific performance action against Provin. On this record, the trial court properly granted nonsuit in favor of Nordine.
It is unnecessary to address the impact, if any, of the trial court’s determination the purchase agreement between Provin and City Properties was void ab initio on the duty owed by Nordine to Provin.
3. Trial court properly granted nonsuit in favor of Coldwell/Gastinell.
a. Provin’s theory as against the buyer’s broker/agent.
In addition to suing his own broker, Provin sued the buyer’s broker and agent, Coldwell and Gastinell, respectively. Provin’s cross-complaint asserted causes of action against Coldwell and Gastinell for breach of fiduciary duty, negligence and fraud. Provin contends Gastinell “failed in her duty to be the agent, and the result was that Provin was sued over a void and unenforceable agreement that [Gastinell] was obligated to negotiate.”
b. Trial court properly granted nonsuit in favor of Coldwell/Gastinell.
The trial court properly rejected Provin’s attempt to hold Coldwell/Gastinell liable for Canillas’s failure to be duly licensed.
Canillas’s role was that of a finder who links up buyers and sellers. The evidence showed Canillas was not a licensed real estate agent and that he was not employed by Coldwell. Rather, Canillas was working for the buyer, namely, City Properties.
Provin’s cause of action against Coldwell/Gastinell sounding in negligence was meritless because they did not owe Provin a duty. This was a commercial real property transaction. The commercial property purchase agreement between City Properties and Provin specified the following agency relationships at paragraph 39: Nordine, the listing agent, was the agent of the seller, Provin, exclusively; Coldwell, the selling agent, was the agent of the buyer, City Properties, exclusively. Therefore, Coldwell and Gastinell did not owe a duty to Provin.
Because Coldwell and Gastinell did not represent Provin, it further follows that they did not owe Provin a fiduciary duty.
Finally, with respect to Provin’s claim against Coldwell/Gastinell for fraud, Provin has not shown what representations they made to him concerning Canillas. Therefore, Provin failed to make out a fraud claim against these cross-defendants.
4. Trial court properly entered judgment in favor of City Properties on Provin’s cause of action for intentional interference with prospective economic advantage.
Provin mistakenly assumes that City Properties’ failure to present a defense at trial on the cross-complaint entitled him to prevail on his cause of action against City Properties for intentional interference with prospective economic advantage.
As indicated, the trial brief filed by Provin in support of his interference claim against City Properties (supported by the declarations of Provin and a forensic accountant) contended Provin and GIC suffered a loss of at least $147,500 “as a result of the time that he had to focus on addressing the conduct of Radden and [City Properties], and he suffered as a result of the time directed in defeating the lawsuit [brought against him by City Properties] which he would have otherwise devoted to the business enterprise.”
Thus, Provin did not, and cannot, assert City Properties disrupted his relationship with EHOP because Provin successfully consummated the sale of the subject real property to EHOP. Further, Provin did not contend City Properties disrupted his economic relationship with any identifiable other parties. Provin merely claimed he was entitled to interference damages because the lawsuit filed by City Properties diverted his attention from running his business, causing him lost profits.
“ ‘The tort of intentional or negligent interference with prospective economic advantage imposes liability for improper methods of disrupting or diverting the business relationship of another which fall outside the boundaries of fair competition. ’ ” (San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544.) In order to prove intentional interference with prospective economic advantage, Provin would have to establish (1) an economic relationship with third parties which offered the probability of future economic benefit to Provin; (2) City Properties’ knowledge of this relationship; (3) City Properties’ intentional acts designed to disrupt that relationship; (4) actual disruption of the relationship; and (5) economic harm to Provin proximately caused by City Properties’ acts. (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1152, fn. 6.)
Detriment to Provin’s business, resulting from Provin’s focusing his energies on resisting the lawsuit filed by City Properties, is not recoverable as damages under the tort of intentional interference with prospective economic advantage. Therefore, the trial court properly entered judgment in favor of City Properties on this cause of action.
5. No merit to claim of evidentiary error.
Provin contends that if his evidence were insufficient to withstand nonsuit, that deficiency was the result of the trial court’s error in excluding relevant evidence and testimony that would have enabled him to defeat the nonsuit motions by Nordine and Gastinell, and that the trial court’s evidentiary error stemmed from the court’s erroneous understanding of the legal effect of the summary judgment which Provin obtained on City Properties’ complaint. Provin asserts, in a 2 ½ page argument in his opening brief, “the trial court sustained over 100 relevancy objections. Offers of proof by Provin’s counsel showed that had the questions and testimony been permitted, and the relevancy objections overruled, Provin would have succeeded in opposing the grant of non-suit in favor of Nordine and Gastinell.”
Provin’s omnibus attack on the trial court’s evidentiary rulings is unavailing. Our review is governed by Evidence Code section 354, set forth below. Provin has not briefed the issue of evidentiary error with any particularity. Provin has not even specified the 100-plus evidentiary objections which he contends were erroneously sustained. Therefore, the contention merits no discussion. (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.)
Evidence Code section 354 states: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination.”
DISPOSITION
The judgments of nonsuit in favor of Nordine, Gastinell and Coldwell are affirmed. The judgment in favor of City Properties and Radden also is affirmed. Nordine and Gastinell shall recover their costs on appeal.
We concur: CROSKEY, J., ALDRICH, J.