Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PC042646. Melvin D. Sandvig, Judge.
Gordon C. Strange for Defendant, Cross-complainant and Appellant.
McGarrigle, Kenney & Zampiello, Patrick C. McGarrigle and Michael J. Kenney for Plaintiff, Cross-defendant and Respondent.
WOODS, J.
INTRODUCTION
A commercial real estate broker sued its client, alleging the client had failed to pay the full commission amount due when the client’s property was sold. The client filed a cross-complaint claiming the commission agreement had been modified. The trial court sustained without leave to amend the demurrer to the client’s cross-complaint, and then granted the broker’s motion for summary judgment. The client appeals. We reverse.
FACTUAL AND PROCEDURAL SUMMARY
In April 2008, real estate broker Grubb & Ellis Company (Grubb & Ellis) filed a complaint against Porter Ranch Shopping Center, LLC (Porter Ranch) for breach of contract. According to Grubb & Ellis, Porter Ranch had agreed to pay a commission in the amount of 2 percent of the gross sales price of the property located at 19300 Rinaldi Street as stated in the Exclusive Authorization of Sale (EAS) agreement, dated September 17, 2007 (with an expiration date of January 20, 2008), attached as an exhibit to the complaint. (According to the agreement, “The price and terms of the sale shall be as follows: Thirty[-]one million dollars ($31,000,000) all cash to seller.”) The property was in escrow and based on the sale price, Grubb & Ellis alleged, Porter Ranch owed a commission of $513,000 but had directed the escrow company not to pay this amount.
This amount ($513,000) is 2 percent of $25,650,000.
Porter Ranch filed an answer and cross-complaint. Shortly thereafter, it filed a first amended cross-complaint, alleging real estate agent and broker Tom Lagos, Vice President of Investment Services at Grubb & Ellis, orally agreed to reduce the commission from 2 percent to 1.5 percent to induce Porter Ranch to reduce the property’s sale price. It had been listed for $31 million. According to Porter Ranch, this agreement between Lagos and Porter Ranch’s representative (Arnold Klein) was authorized by Grubb & Ellis’s managers, Don Hudson and Bill Boyd, who also agreed to memorialize the agreement in writing, at a meeting on February 20, 2008. Based on these representations, Porter Ranch agreed to credit the buyer $550,000 with Grubb & Ellis to receive a reduced commission of $384,750. After repeated requests to do so, however, neither Hudson nor Boyd memorialized the parties’ modification in writing. Porter Ranch asserted breach of contract, breach of implied covenant of good faith and fair dealing, negligent misrepresentation, intentional misrepresentation, false promise, breach of fiduciary duty and declaratory relief causes of action.
Grubb & Ellis demurred, arguing the written agreement prohibited oral modifications, and the alleged oral agreement was not executed by the parties and was not supported by new consideration. The listing agreement included the following provision: “NO AMENDMENTS TO OR MODIFICATIONS OF THIS AUTHORIZATION NOR TERMINATION OF THIS AUTHORIZATION SHALL BE VALID OR BINDING UNLESS MADE IN WRITING AND SIGNED BY BOTH OWNER AND AN OFFICER OF BROKER. OWNER HEREBY ACKNOWLEDGES THAT SALESPERSONS AFFILIATED WITH BROKER ARE NOT AUTHORIZED TO MAKE OR APPROVE ANY ADDITIONS TO, DELETIONS FROM OR ALTERATIONS OF THE PRINTED PROVISIONS OF THIS AUTHORIZATION, OR TO TERMINATE THIS AUTHORIZATION, AND THAT NO SUCH ADDITION, DELETION, ALTERATION OR TERMINATION SHALL BE VALID OR BINDING ON BROKER UNLESS IN WRITING AND SIGNED BY AN OFFICER OR BROKER. ANY PURPORTED AMENDMENT, MODIFICATION OR TERMINATION OF THIS AUTHORIZATION WHICH IS ORAL, OR WHICH IS IN WRITING BUT NOT SIGNED BY BOTH OWNER AND AN OFFICER OF BROKER, SHALL BE VOID AND OF NO EFFECT WHATSOEVER.” Under the heading “Grubb & Ellis Company, ” the agreement was signed by Don Hudson, “Executive VP/Managing Director, ” and Tom J. Lagos, CCIM, “Vice President.”
There was also a signature line (but no signature) for Kyle R. Miller, “Associate.”
Over Porter Ranch’s opposition, the trial court sustained the demurrer without leave to amend, noting any oral modification was void under the terms of the agreement. Porter Ranch filed a motion for reconsideration and for relief under Code of Civil Procedure section 473. According to counsel for Porter Ranch (Robert Katz), Tom Lagos had provided e-mails confirming the agreement to reduce the commission from 2 percent to 1.5 percent, but Katz had failed to mention them. The trial court granted Porter Ranch’s motion for relief, imposed sanctions in the amount of $2,250 and allowed Porter Ranch to file its second amended cross-complaint.
In the second amended cross-complaint, Porter Ranch further alleged that Tom Lagos confirmed the commission reduction from 2 percent to 1.5 percent in an e-mail to Klein dated February 26, 2008 (Exhibit B to the pleading), and Lagos instructed the escrow company (First American Title Company) to reduce the commission to 1.5 percent in an e-mail dated February 26, 2008 (Exhibit C). Based on Hudson’s and Boyd’s representations Grubb & Ellis would accept 1.5 percent commission instead of 2 percent and Lagos’s e-mail correspondence memorializing this modification, Porter Ranch agreed to credit the purchaser $550,000. If Hudson and Boyd had not represented Grubb & Ellis would accept the lower commission and if no e-mail correspondence had been received, Porter Ranch would not have agreed to the credit.
Again, Grubb & Ellis filed a demurrer, arguing “no writing signed by [Grubb & Ellis] (and [Porter Ranch]) is appended to the [second amended cross-complaint], ” as Lagos was employed by Colliers International, and not Grubb & Ellis, by the time of the e-mail correspondence. Again, over Porter Ranch’s opposition, the trial court sustained without leave to amend the demurrer to Porter Ranch’s second amended cross-complaint.
In the meantime, Grubb & Ellis had also filed a motion for summary judgment on its complaint for breach of the listing agreement, reiterating that the listing agreement prohibited oral modification and Lagos was at Colliers International by the time of his e-mail correspondence. According to the supporting declaration of Don Hudson, Tom Lagos’s “engagement as an independent contractor of [Grubb & Ellis] terminated” on January 10, 2008. According to Hudson, Ryan Hahn of First American Title Company e-mailed Hudson, indicating Lagos had advised Hahn the commission amount should be amended to be 1.5 percent, but he (Hudson) responded he was the “Managing Director” of Grubb & Ellis and the “only person authorized to sign any amendment;” the commission remained at 2 percent.
In support of its opposition, Porter Ranch submitted declarations from Arnold Klein (Porter Ranch’s representative) and his wife along with deposition testimony from Tom Lagos and Kyle Miller who had worked with Klein on the sale of the property. Klein said he was represented at Grubb & Ellis by broker and vice president Tom Lagos and his team—Kyle Miller and Josh Hoffman. To Klein’s knowledge, Lagos and Miller moved to Collier’s International on January 10, 2008, while Josh Hoffman remained at Grubb & Ellis. The listing agreement had an expiration date of January 20, 2008. However, based on continuing discussions with Lagos, Klein said it was his understanding he was still represented in his deal by Lagos working in conjunction with Miller and Hoffman.
According to Klein, after several months of marketing efforts, on November 20, 2007, Porter Ranch received an offer from JH Real Estate and agreed to a price of $26 million. On December 18, however, the buyer requested a further price reduction. On January 10, 2008, Klein received a mutually executed letter of intent agreeing to a further price reduction to $25,650,000, and on February 4, a purchase agreement in this amount was executed by both parties. On February 6, the buyer demanded a further price reduction in the amount of $1 million, based on differences in the shopping center’s income. Klein rejected the demand. On February 8, the buyer wrote that it would cancel escrow without the price reduction, and the parties agreed to extend the buyer’s due diligence time frame to allow for further negotiations in the hope of saving the deal.
On February 20, Klein said, Lagos, Miller and Hoffman met with him at his home and presented him with an amendment to the purchase and sale agreement signed by the buyer (JH Real Estate). Porter Ranch was to credit the buyer $1 million in exchange for the buyer’s release of all contingencies and release of the non-refundable deposit of $1 million. After a lengthy discussion, Klein agreed to credit the buyer $550,000 at the close of escrow in conjunction with Grubb & Ellis’s reduction of its commission from 2 percent to 1.5 percent. Lagos, Miller and Hoffman “all agreed to have their [Grubb & Ellis] commission cut from 2% to 1.5% to get the deal done.” On February 22, the buyer agreed to the $550,000 credit under Porter Ranch’s conditions.
On March 5, according to Klein’s declaration, Klein and his wife met with Hudson and Boyd at the Cheesecake Factory in Brentwood. Hudson and Boyd confirmed the commission had been reduced from 2 percent to 1.5 percent and said “everything that needed to be done to accomplish this reduction in the commission percentage had ALREADY been done and... the matter was completely taken care [of].” Based on Hudson’s and Boyd’s specific oral representations, Klein said, he understood the commission percentage had been reduced to 1.5 percent. Klein understood Lagos sent escrow personnel an e-mail confirming the reduction. During the first week of April, Porter Ranch and its buyer agreed to a closing date of April 18. On April 10, Klein sent an e-mail to the escrow company confirming the reduction. Contrary to Hudson’s and Boyd’s representations, Klein is informed Hudson notified escrow he was not in agreement, and Grubb & Ellis filed its complaint the following week.
According to Lagos’s deposition testimony, Lagos understood Klein had agreed to accept the reduced price on condition that the commission would be reduced to 1.5 percent, and he (Lagos), Hoffman and Miller agreed to the reduction. In his 14 years at Grubb & Ellis, Lagos testified, he had never had a commission reduction rejected. When he left Grubb & Ellis, he still had a number of deals pending, including Porter Ranch’s deal, and he continued working on them and taking care of what needed to happen. “Everybody wants to get paid.” The termination agreement dated “2/28/08” attached to his deposition listed the Porter Ranch deal as one of Lagos’s “transactions in progress” with an “anticipated gross commission” of $376,500—not $513,000 as Grubb & Ellis claimed.
Similarly, Miller testified at his deposition that “the three brokers in the room”—Lagos, Hoffman and Miller—agreed to the 1.5 percent commission reduction.
According to exhibits to Lagos’s deposition, Lagos initially listed the “anticipated commission amount” as $376,500 (1.5 percent of $25,100,000) in one document, but in another, identified the “total gross commission/fee” as $384,750, on a 1.5 percent “fee schedule” with “total sale consideration or engagement value” of $25,100,000. In a box entitled “commission calculation, ” Lagos noted, “commission based on $25,650,000”—apparently because the listing agreement provided for a fee based on the gross sales price and the effective price reduction was accomplished by a credit to the buyer, rather than a further reduction in the gross sales price.
Grubb & Ellis filed opposition and objected to the entirety of Porter Ranch’s evidence. The trial court agreed and granted summary judgment in Grubb & Ellis’s favor, finding the agreement required a writing signed by both Porter Ranch and an officer of Grubb & Ellis which was never procured and Porter Ranch breached the agreement to pay 2 percent commission. The trial court entered judgment in favor of Grubb & Ellis against Porter Ranch.
Porter Ranch appeals.
DISCUSSION
According to Porter Ranch, citing Business and Professions Code sections 10176 and 10177, “at least with respect to the sixth cause of action for breach of fiduciary duty, ” the trial court erred in sustaining without leave to amend Grubb & Ellis’s demurrer. According to Grubb & Ellis, the express terms of the listing agreement forbid oral modification and allegations of fraud at variance with the promise of a writing violate the parol evidence rule and are not actionable under Bank of America v. Pendergrass (1935) 4 Cal.2d 258, 263.
As relevant, Business and Professions Code section 10176 provides as follows:
In an appeal from a judgment dismissing an action after a demurrer had been sustained without leave to amend, “The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603, citations omitted.) “Based on this standard of review, our inquiry ends and reversal is required once we determine a complaint has stated a cause of action under any legal theory.” (Ibid.; see also Saunders v. Cariss (1990) 224 Cal.App.3d 905, 911.)
“To establish a cause of action for breach of fiduciary duty, a plaintiff must demonstrate the existence of a fiduciary relationship, breach of that duty and damages.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 182.) “When a broker is engaged by an owner to market the owner’s property, an agency relationship is created. The agent has fiduciary duties to the seller to disclose all material facts.” (Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1563.)
“‘The law imposes on a real estate agent “the same obligation of undivided service and loyalty that it imposes on a trustee in favor of his beneficiary.” [Citations.] This relationship not only imposes upon him the duty of acting in the highest good faith toward his principal but precludes the agent from obtaining any advantage over the principal in any transaction had by virtue of his agency. [Citation.]’ (Batson v. Strehlow (1968) 68 Cal.2d 662, 674-675 [68 Cal.Rptr. 589, 441 P.2d 101].) A real estate licensee is ‘charged with the duty of fullest disclosure of all material facts concerning the transaction that might affect the principal’s decision. [Citations.]’ [Citations.]” (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 782, additional citations omitted; Roberts v. Lomanto, supra, 112 Cal.App.4th at pp. 1562-1563; see also Warren v. Merrill (2006) 143 Cal.App.4th 96, 109.)
“‘[A] real estate licensee, while acting in his or her capacity as such, must not receive any benefit from the transaction of his or her agency other than that which is known and accepted by the principal. The agent will not be permitted to retain anything that might otherwise derive from participation in the transaction unless the agent fully discloses the nature and amount of the benefit and receives the approval of the principal....’ ‘“[T]he principal’s right to recover does not depend on any deceit of the agent, but is based upon the duties incident to the agency relationship and upon the fact that all profits resulting from that relationship belong to the principal.”’ [Citation.]” (Roberts v. Lomanto, supra, 112 Cal.App.4th at pp. 1563-1564.)
According to the second amended complaint, Porter Ranch originally listed the property at $31,000,000 and agreed to reduce the price to $25,650,000. Then, in order to reduce the price to $25,100,000 (by way of a $550,000 credit to the buyer), Grubb & Ellis falsely represented it would reduce its commission from 2 percent to 1.5 percent when it never intended to accept such a reduction. More particularly, Porter Ranch alleged, Grubb & Ellis’s real estate agent and broker Tom Lagos, Vice President of Investment Services, agreed to this reduction, and the reduction was authorized by Grubb & Ellis’s managers Don Hudson and Bill Boyd at a meeting with Arnold Klein (Porter Ranch’s representative) on February 20, 2008.
The Grubb & Ellis form “Exclusive Authorization of Sale” attached to the pleading is signed on behalf of Grubb & Ellis (“Broker”) by both “Don Hudson[, ] Executive VP/Managing Director” and “Tom J. Lagos, CCIM[, ] Vice President.”
“[F]or the purposes of the administration of real estate law, the salesperson is the employee and agent of the broker.” (Grubb and Ellis Co. v. Spengler (1983) 143 Cal.App.3d 890, 895, citing Bus. & Prof. Code, §§ 10132, 10137, 10151, 10160, 10177, subd. (h), additional citations omitted.) “For purposes of establishing tort liability, the California courts have held that a broker is liable under the doctrine of respondeat superior for the tortious acts of [its] salespeople during the course and scope of business because a salesperson is the agent of the broker.” (Grubb and Ellis Co. v. Spengler, supra, 143 Cal.App.3d at p. 895; see also Gipson v. Davis Realty Co. (1963) 215 Cal.App.2d 190, 206-207 [“the Legislature has, by virtue of statutory enactment, made such a sales[person] an agent of the broker as a matter of law”].) “[O]nly a licensed broker may provide broker services. ([Bus. & Prof. Code, ] § 10136; accord, [Bus. & Prof. Code, ] § 10132 [real estate salesperson is employed by a licensed real estate broker].) A sales license does not permit its holder to represent another unless the salesperson acts under a broker’s authority.” (Venturi & Company LLC v. Pacific Malibu Development Corp. (2009) 172 Cal.App.4th 1417, 1423, citation omitted.)
“[A real estate salesperson] can act only for, on behalf of, and in place of the broker under whom he is licensed, and... his acts are limited to those which he does and performs as an agent for such broker.... [A real estate] sales[person], insofar as his [or her] relationship with the broker who employs him [or her] is concerned, cannot be classed as an independent contractor. Accordingly, any contract which purports to change that relationship from that of agent to independent contractor is invalid as being contrary to the provisions of the Real Estate Law. [Citation.]” (Grubb and Ellis Co. v. Spengler, supra, 143 Cal.App.3d at p. 895.)
In ruling Porter Ranch had not adequately stated a breach of fiduciary duty cause of action (or any other), the trial court concluded: “[T]he bottom line is the clear language of the EAS[;] the Exclusive... Authorization of Sale agreement... said any modification had to be in writing signed by the parties.” We disagree. If, as Porter Ranch alleges, Grubb & Ellis lied (repeatedly) to Klein about reducing its commission in order to induce Porter Ranch to close the sale at a reduced price, with the undisclosed intention of relying on the requirement of a writing specified in the listing agreement to avoid honoring this commitment, Porter Ranch’s failure to anticipate and protect against such conduct by its fiduciary does not immunize that breach, which is based on a duty arising from the real estate agent-principal relationship itself and not the listing agreement. (See Charnay v. Cobert, supra, 145 Cal.App.4th at p. 182; see also Burch v. Argus Properties, Inc. (1979) 92 Cal.App.3d 128, 131-132 [“[T]he major purpose of the Real Estate Law is to protect the public by insuring that real estate brokers are honest and truthful with their clients. There does not need to be bad faith or malfeasance for a violation.”].)
Grubb & Ellis’s reliance on the parol evidence rule (Code Civ. Proc., § 1856, subd. (a) [“Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement”]) as discussed in Bank of America v. Pendergrass (1935) 4 Cal.2d 258 is misplaced inasmuch as Porter Ranch’s allegations involve representations made after the execution of the listing agreement, not a prior or contemporaneous oral agreement, so the parol evidence simply does not apply. (Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1465 [parol evidence rule excludes only extrinsic evidence of prior or contemporaneous agreements, not subsequent oral agreements]; Charnay v. Cobert, supra, 145 Cal.App.4th at p. 186.)
Moreover, Lagos, at least, confirmed the commission reduction in writing. In an e-mail to the escrow company dated February 26, 2008, referencing “Porter Ranch” (attached as an exhibit to the complaint), Lagos stated: “Please amend commission to 1.5%[.]” According to another e-mail of the same date from Lagos to Klein (also attached to the complaint), Lagos forwarded a portion of an e-mail he (Lagos) had sent to Hudson regarding “the commission reduction for Porter Ranch [that] has already been agreed to.”
“‘Writing’ means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” (Evid. Code, § 250.)
The listing agreement was a Grubb & Ellis form. An exclusive listing agreement is strictly construed against the broker who drafted it. (Coleman v. Mora (1968) 263 Cal.App.2d 137, 144; Howard Gitlen & Assocs. v. American (1989) 208 Cal.App.3d 90; Civ. Code, § 1654.) Under the typed heading “GRUBB & ELLIS COMPANY, ” preprinted with signature lines and typed names for Don Hudson, “Executive VP/Managing Director, ” Tom J. Lagos, CCIM, was identified as “Vice President, ” and Kyle R. Miller, “Associate.” No one was specifically identified as an “officer” and no one was identified as a “salesperson, ” despite Grubb & Ellis’s use of these terms to indicate who could and could not bind Grubb & Ellis. However, like Hudson (who later claimed to be the only person authorized to sign any amendment), Lagos was also identified by Grubb & Ellis as a “Vice President.” According to Porter Ranch’s allegations, Don Hudson and Bill Boyd authorized the commission reduction on February 20, 2008, and Lagos confirmed the reduction in his e-mail correspondence of February 26, 2008. Any issues relating to Lagos’s authority to act were not properly resolved as a matter of law at the demurrer stage.
In any event, Civil Code section 1698 provides: “(a) A contract in writing may be modified by a contract in writing. (b) A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties. (c) Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is required to be satisfied if the contract as modified is within its provisions. (d) Nothing in this section precludes in an appropriate case the application of rules of law concerning estoppel, oral novation and substitution of a new agreement, rescission of a written contract by an oral agreement, waiver of a provision of a written contract, or oral independent collateral contracts.” (Italics added; see also Wagner v. Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1388; Wade v. Markwell and Co. (1953) 118 Cal.App.2d 410, 421.)
An agreement employing a broker to act in a real estate transaction must satisfy the statute of frauds, but as long as the writing addresses the fact of employment of the broker to act in the transaction, the broker’s identity and a sufficiently certain description of the property, other terms such as the amount of the broker’s compensation and even the agreement to pay the broker’s compensation need not be stated in the writing. (Greenwald, Cal. Practice Guide: Real Property Transactions (The Rutter Group 2009) ¶¶ 2:282 to 2:283 at p. 2-69, citing Beazell v. Schrader (1963) 59 Cal.2d 577, 580; Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 21.)
Porter Ranch alleged it agreed to credit the purchaser $550,000 based on Grubb & Ellis’s representations that it would accept a commission of 1.5 percent instead of 2 percent; Porter Ranch further alleged it would not have agreed to credit the purchaser $550,000 if its broker (Grubb & Ellis) had not agreed to reduce the commission due on sale. According to Porter Ranch’s allegations, Hudson and Boyd authorized the reduction, and as evidenced by the exhibits to the operative complaint, Lagos confirmed the reduction in writing. It follows that Porter Ranch’s claim for breach of fiduciary duty should have withstood Grubb & Ellis’s demurrer. (Roberts v. Lomanto, supra, 112 Cal.App.4th at p. 1567 [“a real estate agent’s fiduciary duty of disclosure extends to all material facts—that is, all facts that might affect the principal’s willingness to enter into or complete a transaction”]; see also Burch v. Argus Properties, Inc., supra, 92 Cal.App.3d at pp. 131-132 [“[T]he major purpose of the Real Estate Law is to protect the public by insuring that real estate brokers are honest and truthful with their clients. There does not need to be bad faith or malfeasance for a violation.”].)
In fact, according to Klein’s subsequently filed declaration in opposition to Grubb & Ellis’s summary judgment motion, Hudson and Boyd later confirmed that “everything that needed to be done to accomplish this reduction in the commission percentage [from 2 percent to 1.5 percent], had ALREADY been done and... the matter was completely taken care of.” According to Lagos’s deposition testimony, Klein agreed to the further reduction in price on the condition that the commission percentage would also be reduced to 1.5 percent; in his 14 years at Grubb & Ellis, Lagos testified, he had never had a commission reduction rejected.
Turning to Porter Ranch’s other causes of action, the elements of fraud are misrepresentation (false representation, concealment or nondisclosure), knowledge of falsity (scienter), intent to defraud (i.e., to induce reliance), justifiable reliance and resulting damage. (Charnay v. Cobert, supra, 145 Cal.App.4th at p. 184, citations omitted.) The elements of negligent misrepresentation are similar to the elements of intentional fraud except for the requirement of scienter; in asserting a negligent misrepresentation claim, the plaintiff need not allege the defendant made an intentionally false statement, but rather the defendant lacked any reasonable ground for believing the statement to be true. (Ibid.) Here, Porter Ranch sufficiently alleged with particularity the “how, when, where, to whom and by what means the representations were tendered, ” such that its negligent misrepresentation, intentional misrepresentation and false promise causes of action should have withstood demurrer for the reasons already addressed in connection with the breach of fiduciary duty claim. (Id. at p. 185, fn. 14, citation omitted.) Any issues as to whether Porter Ranch justifiably relied on the representations alleged notwithstanding the language of the listing agreement were not properly resolved on demurrer. (Id. at pp. 185-186.)
Similarly, Porter Ranch’s contract claims (based on the same allegations as its breach of fiduciary duty and fraud claims) should have withstood demurrer. According to the agreement attached to its cross-complaint, Porter Ranch agreed to the sale of its shopping center at a price of $31 million in exchange for a commission of 2 percent. Its allegations in support of the modification of this agreement (price reduction in exchange for commission reduction so that all parties would benefit from the completed sale), supported by the writings attached to the pleading, as well as the representations alleged, did not justify resolution of Porter Ranch’s claims at the pleading stage as a matter of law.
The trial court granted Grubb & Ellis’s motion for summary judgment on its complaint for breach of contract because it had sustained without leave to amend Grubb & Ellis’s demurrer to Porter Ranch’s cross-complaint. As the court erred with respect to the viability of Porter Ranch’s allegations in light of the written agreement, it follows that summary judgment was improperly granted.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions to vacate its orders granting Grubb & Ellis’s motion for summary judgment on its complaint and sustaining without leave to amend its demurrer to Porter Ranch’s second amended cross-complaint, enter new orders denying Grubb & Ellis’s motion for summary judgment and overruling Grubb & Ellis’s demurrer to Porter Ranch’s second amended cross-complaint and to conduct further proceedings not inconsistent with this opinion. Porter Ranch is entitled to its costs of appeal.
We concur: PERLUSS, P. J., ZELON, J.
“The commissioner may, upon his or her own motion, and shall, upon the verified complaint in writing of any person, investigate the actions of any person engaged in the business or acting in the capacity of a real estate licensee within this state, and he or she may temporarily suspend or permanently revoke a real estate license at any time where the licensee, while a real estate licensee, in performing or attempting to perform any of the acts within the scope of this chapter has been guilty of any of the following:
“(a) Making any substantial misrepresentation. “(b) Making any false promises of a character likely to influence, persuade or induce. “(c) A continued and flagrant course of misrepresentation or making of false promises through real estate agents or salespersons....
“(i) Any other conduct, whether of the same or a different character than specified in this section, which constitutes fraud or dishonest dealing....” (Italics added.)
Further, section 10177 of the Business and Professions Code provides (in pertinent part): “The commissioner may suspend or revoke the license of a real estate licensee, or may deny the issuance of a license to an applicant, who has done any of the following, or may suspend or revoke the license of a corporation, or deny the issuance of a license to a corporation, if an officer, director, or person owning or controlling 10 percent or more of the corporation’s stock has done any of the following:... (j) Engaged in any other conduct, whether of the same or a different character than specified in this section, which constitutes fraud or dishonest dealing.”
Civil Code section 1633.7 provides:
“(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. “(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. “(c) If a law requires a record to be in writing, an electronic record satisfies the law. “(d) If a law requires a signature, an electronic signature satisfies the law.”
(See also Civ. Code, § 1633.13 [“In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form”].)