Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Clay M. Smith, Judge. Affirmed. Super. Ct. No. 05CC07279
Mazur & Mazur, Janice R. Mazur and William E. Mazur, Jr., for Plaintiffs and Appellants.
Koenig Jacobsen, Randall F. Loenig, Wilfred A. Llaurado and Christina Y. Tsou for Defendant and Respondent.
OPINION
ARONSON, J.
Plaintiffs Thomas and Renee Hafen, trustees of the Hafen Trust, challenge the trial court’s grant of summary judgment in favor of defendant Winthrop Clark. The Hafens contend Clark’s failure to adequately disclose a land swap and easement agreement to a buyer of real properly affected by the agreement raises a triable issue of fact whether Clark conspired to suppress the agreement from the buyer to render it unenforceable. We disagree.
The undisputed evidence demonstrates Clark attempted to provide a full disclosure of the agreement to the buyer, but was thwarted because Thomas Hafen agreed to a confidentiality provision preventing Clark from obtaining a copy or learning its terms. The evidence also demonstrates Clark disclosed the agreement’s existence and directed the buyer to where she could obtain a copy. Even if Clark could have done more to facilitate disclosure of the agreement, any inadequacy in his disclosure does not create an inference sufficient to raise a triable fact regarding his participation in a conspiracy. Accordingly, we affirm.
I
Factual and Procedural Background
This case concerns two parcels of real property commonly known as 30021 and 30022 Canyon Creek Drive, Trabuco Canyon. As of April 2001, Terry and Linn Moshenko owned 30021, and Mark and Linda Frauman owned 30022. On April 21, 2001, the Moshenkos and Fraumans entered into an “Agreement for Property and Easement Exchange” (2001 agreement), calling for the exchange of certain portions of the two properties, and the grant of visual easements. Clark, a real estate agent and adjacent landowner, signed the 2001 agreement as a witness. The 2001 agreement was “contingent upon, and of no force and effect unless” the specified land exchange took place, and the visual easements were granted. The 2001 agreement was never recorded with the county, and Terry Moshenko died before the parties executed the property exchanges and easement grants.
The Hafens purchased 30021 in August 2002, and Theodore Carlson and Michael Meacher purchased 30022 in January 2004. The Hafens, as had the Moshenkos, claimed ownership to a flat portion of 30022 (claimed area), and used it as their own. In July 2004, Carlson and Meacher listed 30022 for sale with Clark as agent. After six months, Clark and the sellers became frustrated with the property not selling, blaming the untidy condition of the Hafens’ property for repelling prospective buyers. Accordingly, Clark requested a meeting with Thomas Hafen and Meacher. At the meeting, Clark suggested the Hafens construct a fence around the claimed area and their property to shield it from the view of potential buyers. Clark assured Hafen they could form an agreement that would protect his interest in the claimed area, which could be disclosed to potential purchasers. When Hafen expressed reservations about erecting a fence that might block his view, Clark became enraged, stating he could not sell 30022 without the fence, and left the meeting.
Following Clark’s departure, Hafen and Meacher agreed Hafen would clean up his property and build a wall, and the parties would exchange view easements and portions of their respective properties to convey the claimed area to the Hafens. The Hafens and the Meachers signed the agreement on January 29, 2005 (2005 agreement). The 2005 agreement rescinded all previous agreements between the parties and their predecessors, and expressly rescinded the 2001 agreement. It also provided that if 30022 sold for more than $300,000, Carlson would pay Hafen a bonus of half of any amount exceeding $300,000, up to a maximum of $10,000. The parties agreed their 2005 agreement was “confidential and shall run with the land,” and that it “will not be disclosed to other property owners in the neighborhood.”
Although Clark learned the parties had reached an accord, Clark never received a copy of the 2005 agreement. Clark did not know any of the terms of the 2005 agreement, learning only that it generally dealt with the cleanup of 30021.
On March 9, 2005, Rhonda Nielsen agreed to purchase 30022 for $550,000, and opened escrow on the property. Clark represented the sellers and Nielsen in the transaction. Clark requested Meacher provide him a copy of the 2005 agreement to provide to Nielsen before escrow closed. Meacher refused, citing the confidentiality provision. Similarly, Hafen testified he did not give Clark a copy of the agreement to provide to Nielsen because Clark was a neighbor prohibited under the agreement from disclosure. Hafen believed it was Meacher’s responsibility to disclose the agreement without involving Clark.
Unable to procure a copy of the agreement, Clark provided Nielsen with a document he drafted entitled “Trabuco Canyon Disclosures,” which included the following paragraph: “The seller will be supplying an additional disclosure of an agreement between them and the property across from 30022 Canyon Creek. This agreement was discussed, in part, at my house with Mr. Meacher. I am told this agreement has a nondisclosure clause that precludes me from viewing it.” Nielsen did not receive a copy of the 2005 agreement either before or during the escrow period.
Escrow closed on the property at 30022 on May 19, 2005. On June 13, 2005, Meacher faxed a copy of the 2005 agreement to Nielsen. Asserting she had been unaware of the land exchange called for under the agreement, Nielsen refused to be bound by it. Nielsen contended the land exchange would remove from her property the only area suitable for building a residence.
In light of Nielsen’s representations, and Meacher’s refusal to pay the Hafens the $10,000 bonus called for under the 2005 agreement, the Hafens sued Nielsen, Meacher, Carlson, and Clark. The one cause of action against Clark alleged he conspired with Meacher and Carlson to defraud the Hafens out of their rights to the claimed area by suppressing information regarding the 2005 agreement from Nielsen.
The trial court granted Clark summary judgment, “find[ing] that no reasonable trier of fact could find the presence of each of the elements of conspiracy to defraud.” The court noted, “The only reasonable conclusion from the evidence is that Defendant had limited knowledge of the terms of the Exchange and Easement Agreement, that he was denied full access to the Agreement, and that he made a limited disclosure, based on the extent of his knowledge, to Ms. Nielsen prior to the close of escrow.” The Hafens now appeal the resulting judgment.
II
Discussion
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (Id., subd. (c).)
Regarding inferences of conspiracy in a summary judgment context, our Supreme Court has observed: “[E]ven though the court may not weigh the plaintiff’s evidence or inferences against the defendants’ as though it were sitting as the trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact. . . . [Fn. omitted.] In so doing, it does not decide on any finding of its own, but simply decides what finding such a trier of fact could make for itself. [Citations.]
“Thus, if the court determines that any evidence or inference presented or drawn by the plaintiff indeed shows or implies unlawful conspiracy more likely than [lawful activity], it must then deny the defendants’ motion for summary judgment, even in the face of contradictory evidence or inference presented or drawn by the defendants, because a reasonable trier of fact could find for the plaintiff. Under such circumstances, the unlawful-conspiracy issue is triable –– that is, it must be submitted to a trier of fact for determination in favor of either the plaintiff or the defendants, and may not be taken from the trier of fact and resolved by the court itself in the defendants’ favor and against the plaintiff.
“But if the court determines that all of the evidence presented by the plaintiff, and all of the inferences drawn therefrom, show and imply unlawful conspiracy only as likely as [lawful activity] or even less likely, it must then grant the defendants’ motion for summary judgment, even apart from any evidence presented by the defendants or any inferences drawn therefrom, because a reasonable trier of fact could not find for the plaintiff. [Fn. omitted.] Under such circumstances, the unlawful-conspiracy issue is not triable –– that is, it may not be submitted to a trier of fact for determination in favor of either the plaintiff or the defendants, but must be taken from the trier of fact and resolved by the court itself in the defendants’ favor and against the plaintiff.” (Aguilar, supra, 25 Cal.4th at pp. 856-857, original italics.)
The Hafens contend the evidence presented is sufficient to allow a reasonable trier of fact to infer Clark conspired to defraud the Hafens by suppressing the 2005 agreement from disclosure to Nielsen. We disagree.
In support, the Hafens cite evidence demonstrating Clark and Meacher discussed with Hafen an agreement that would allow Hafen to preserve his rights to the claimed area, which the parties would disclose to any future purchaser of 30022. Although Clark left the meeting before the parties reached an understanding, he later learned an agreement had been reached concerning the cleanup of the Hafens’ property. On a number of occasions, Clark observed the construction of the fence called for in the 2005 agreement. Clark’s disclosure of the 2005 agreement to Nielsen was vague, and revealed nothing concerning a potential land swap or exchange of easements.
In addition to the foregoing, the Hafens introduced evidence that Clark had previously disclosed the 2001 agreement to the Hafens and Meacher before they closed escrow on their parcels, but did not disclose the 2001 agreement to Nielsen. The trial court sustained an objection to this evidence on the grounds of relevance. We agree this evidence is irrelevant. The 2001 agreement was no longer valid or enforceable at the time Nielsen purchased the property, and Clark therefore had no reason to disclose it.
If the foregoing constituted all of the evidence before the trial court, we might agree the Hafens had raised a triable issue of fact concerning Clark’s participation in a conspiracy to suppress the 2005 agreement. But the Hafen’s evidence also demonstrated that Hafen and Meacher agreed to a confidentiality clause expressly precluding the agreement’s disclosure to neighboring property owners, which included Clark. Indeed, the evidence demonstrates the provision prevented Meacher from providing a copy of the agreement to Clark, after Clark had requested a copy to give to Nielsen. In a similar vein, Hafen testified he did not give Clark a copy of the 2005 agreement to provide to Nielsen because the confidentiality clause precluded him from doing so.
Nothing, however, suggests Clark had any participation in drafting the confidentiality provision that prevented him from sharing the 2005 agreement with Nielsen. Rather than urging confidentiality, Clark suggested at the beginning of negotiations that Hafen could protect his interests by disclosing the proposed agreement to the new owner. Instead of requiring disclosure to Nielsen, however, Hafen effectively prevented it by agreeing to the confidentiality provision.
Hafen argues Clark could have done more to disclose the 2005 agreement. But Hafen’s argument is much like a track coach tying a runner’s feet together, and then carping about her losing the race. Whether or not Clark could have made a better disclosure of the 2005 agreement is not the issue. The question is whether a reasonable trier of fact could infer from Clark’s conduct his participation in a conspiracy to suppress information regarding the 2005 agreement from Nielsen. Even considering the facts in a light most favorable to the Hafens, such an inference of conspiracy is so unlikely it does not rise to the level of triable issue of fact. We therefore conclude the trial court did not err in granting Clark summary judgment.
III
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.