Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06CC08023 Charles Margines, Judge.
Gary Rand & Suzanne E. Rand-Lewis, Suzanne E. Rand-Lewis and Timothy D. Rand-Lewis for Cross-complainants and Appellants.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Lisa W. Cooney; Sunderland McCutchan and Ann Marie Thompson for Cross-defendants and Respondents.
OPINION
ARONSON, J.
This appeal arises from what the trial court described as a “real estate deal gone bad” involving a four-unit rental property in Huntington Beach The would-be buyer, Mylan Hoang (Hoang, or the buyer), is not a party to the appeal, but she commenced the litigation by suing Leslie and Thomas Rand-Luby (the sellers) for failing to return her earnest money deposit after the deal soured. The sellers cross-complained against Hoang and other cross-defendants, including Hoang’s mortgage broker, Valley Financial Services (Valley), and its loan agent, Theresa Hoang (collectively, the brokerage cross-defendants). The sellers appeal from an adverse judgment dismissing their breach of contract, fraud, and related claims against the brokerage cross-defendants. As we explain, the sellers fail to show the trial court abused its discretion in hearing the brokerage cross-defendants’ belated motion for judgment on the pleadings. On the merits, we also conclude the sellers failed to state breach of contract, tort, or other claims against the brokerage cross-defendants. We therefore affirm the judgment.
I
STANDARD OF REVIEW AND PERTINENT BACKGROUND
“On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, ‘i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.’ [Citation.]” (Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 Cal.App.4th 1441, 1445.) We turn to the pleadings for the operative facts, “‘“treat[ing] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]...”...’” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
On April 4, 2006, Hoang accepted the sellers’ counteroffer and agreed to purchase their property located on Blanton Street for just over $1.3 million. The counteroffer set Hoang’s earnest money deposit at $25,000 and her downpayment at $327,500, and required her to obtain a $962,500 mortgage to complete the purchase. The parties also agreed that “if Buyer fails to notify Seller in writing that Buyer has removed [the] loan contingency within seventeen (17) calendar days of opening escrow, this Agreement shall [be] voidable at the option of the Seller and the entire Deposit shall be returned to Buyer.” Hoang promised expressly to use her “best efforts” to obtain the necessary financing. The counteroffer also required the parties to initial a liquidated damages term providing for forfeiture of Hoang’s earnest money deposit “in the event that Buyer breaches this Agreement by defaulting [o]n completion of the purchase....” But neither party initialed the liquidated damages term as required. The parties opened escrow on April 17, 2006.
Hoang sought financing from her niece, Theresa Hoang, a loan broker at Valley Financial Services. According to the sellers’ cross-complaint, Hoang “represented” that “if necessary [she] had agreed to sell her home to [Theresa] as [Hoang] intended to occupy one of the units of the apartment building.” The sellers received notice in late April that Theresa began the loan process for a mortgage of just $390,000. Presumably the sellers assumed Theresa would purchase Hoang’s existing home and thereby furnish the balance of funds Hoang needed.
For clarity and ease of reference, we refer to Theresa by her first name and her aunt by the family surname, and intend no disrespect to Theresa. (In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
That did not occur. Instead, according to the sellers, Theresa and Valley had no intention of processing the $390,000 loan and were not making any effort to obtain funding. Rather, Theresa knew, and failed to disclose to the sellers, that Hoang had entered an agreement and initiated financing to purchase a two-unit rental property on Oswego Avenue in Huntington Beach. According to the sellers, Theresa failed to disclose the Oswego Avenue property to the sellers because she acted as Hoang’s real estate agent in the transaction and stood to earn a $20,000 commission.
The 17-day loan contingency window closed on May 4, 2006. On May 11, Hoang’s attorney wrote Hoang’s real estate agent stating, “Ms. Hoang asked this office to write you this letter regarding the cancellation of the purchase agreement for the above property due to her [i]nability to procure the loan to conclude the purchase agreement.” The letter directed the agent to “instruct escrow to cancel the escrow relating to the above property and return the deposit to Ms. Hoang.”
Enclosed with the letter was a denial of funding notice on Valley letterhead from Theresa to Hoang, dated May 5th. The notice stated, “Dear Home-Loan customer: [¶] We are sorry to inform you that we can not approve your loan in the amount of $967,500 as you[] requested.” According to the sellers, the brokerage cross-defendants “falsified and backdated [the Valley letter] so as to enable Hoang to attempt to cancel the purchase.” The sellers do not explain what Theresa or Valley “falsified” in the letter.
Possibilities may include: (1) the letter falsely stated Hoang did not qualify for a $967,500 loan, (2) the letter omitted that Hoang did not qualify for a loan in that amount because of her pending Oswego Avenue purchase, which the brokerage cross-defendants failed to disclose, or perhaps (3) the letter omitted disclosing Hoang deliberately failed to exert better efforts to obtain the requisite funds, declining, for example, to prevail on her niece to buy her home. As we will discuss, vagueness can be fatal to a fraud cause of action.
In any event, the sellers alleged they never received notice from Hoang, her attorney, or her real estate agent that she intended to cancel the purchase of their property. Escrow was due to close in early June 2006. Not hearing from Hoang, the sellers placed their property back on the market and suffered $100,000 in lost profits and expenses, including attorney fees, when it sold approximately a month later, in mid-July 2006.
When Hoang later sued the sellers for the return of her $25,000 earnest money deposit, the sellers answered with a cross-complaint against Hoang, her attorney, and the brokerage cross-defendants. The sellers asserted causes of action against the brokerage cross-defendants for breach of contract, breach of the implied covenant of good faith and fair dealing, promissory fraud, concealment, negligent misrepresentation, unfair business practices (Bus. & Prof. Code, § 17200; all further statutory references are to this code unless noted), interference with prospective business advantage, and conspiracy. After an initial trial date was continued more than a year, the brokerage cross-defendants filed a motion for judgment on the pleadings. The trial court granted the motion on all but the fraud causes of action, permitting the sellers to amend these claims. After amendment, the trial court sustained the brokerage cross-defendants’ demurrer, entered judgment against the sellers, and they now appeal.
II
DISCUSSION
A. Timeliness
The sellers contend the trial court should not have heard the brokerage cross-defendants’ motion for judgment on the pleadings because they did not file it 30 days before the initial trial setting. (See Code Civ. Proc., § 438, subd. (e).) The trial court initially set a 2007 trial date but, after continuances pushed the matter back more than a year, the brokerage cross-defendants filed their July 2008 motion, which they labeled a “non-statutory” motion for judgment on the pleadings. The sellers argue the motion was untimely because it did not precede the 2007 trial date by 30 days. But the sellers overlook that the statute on which they rely for the 30-day limit expressly vests the trial court with discretion to permit a late filing. (Code Civ. Proc., § 438, subd. (e); see ante, fn. 3.) The sellers make no argument the trial court abused its discretion in permitting the belated filing. Accordingly, we must presume the trial court acted within its discretion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham); see People v. Garcia (1987) 195 Cal.App.3d 191, 198 (Garcia) [“it is defendant’s burden on appeal to affirmatively demonstrate error - it will not be presumed”]; accord, Cal. Const., art. II, § 13.)
Code of Civil Procedure section 438 establishes the procedure for entering judgment on the pleadings. Section 438, subdivision (e), states: “No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to [s]ection 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (Italics added.)
Additionally, ample authority provides that the trial court may consider a nonstatutory motion for judgment on the pleadings at any time. (E.g., Smiley v. Citibank (1995) 11 Cal.4th 138, 145, fn. 2; Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 7:277, p. 7(1)-75 (rev. #1, 2009) [observing, “There is no point in forcing a case to go to trial” if no valid cause of action is alleged].) We therefore turn to the merits.
B. The Sellers Failed to State a Cause of Action for Breach of Contract
The sellers assert their cross-complaint “clearly alleged the existence of a contract between” the sellers and the brokerage cross-defendants. The record reference the sellers provide on appeal, however, does not refer to their cross-complaint, but rather to the trial court’s docket. Needless to say, nothing in the court’s docket establishes the existence of a contract between the sellers and the brokerage cross-defendants. The sellers therefore forfeit review of their breach of contract claim by failing to provide accurate record citations necessary for review. (Cal. Rules of Court, rule 8.204(a)(1)(C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Had the sellers preserved their claim, it nevertheless fails on the merits. We find nothing in the cross-complaint remotely suggesting the sellers had a contract with the brokerage cross-defendants. The cross-complaint includes numerous references to the real estate purchase agreement the sellers reached with the buyer for the Blanton Street property. But as the trial court aptly observed, “The cross-complaint is completely devoid of allegations that either [brokerage cross-defendant] was a party to the sales agreement.” The absence of an agreement between the sellers and the brokerage cross-defendants is unsurprising given the nature of a real estate transaction in which the buyer, not the seller, needs brokerage services to obtain financing. The sellers’ insistence they had a contract with the brokerage cross-defendants though they nowhere identified one puzzled the trial court, and we are similarly at a loss to understand the claim.
On appeal, the sellers misplace reliance on Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54, 68 [insurance company’s attorney may not fraudulently misstate scope of insured’s coverage to a nonclient].) While Shafer holds tort liability may arise, despite a lack of privity, for an agent’s misstatements to a third party, this unremarkable principle of tort law has nothing to do with establishing the existence of a contract, let alone breach of that contract.
The sellers contend the trial court erred in not permitting them leave to amend to plead a breach of contract claim based on their purported third party beneficiary status. The sellers noted in their cross-complaint that the buyer contracted with them in the purchase agreement “to use [buyer]’s best efforts to obtain a loan.” (Original emphasis.) Without expressly mentioning a third party beneficiary claim, the sellers arguably suggested a third party beneficiary theory by implying in the cross-complaint that the buyer’s obligation to use “best efforts to obtain funding” led her to form a borrower-broker agency relationship or contract with the brokerage cross-defendants, which “benefitted [the sellers].”
The trial court did not err in denying the sellers leave to amend to state expressly a third party beneficiary claim. Simply put, a seller is only an incidental beneficiary of a buyer’s relationship with a mortgage broker. Like an attorney, the broker’s duty is to his or her client. While there are “[i]nnumerable instances... in which services performed by an attorney will benefit others besides his client, ” these persons remain only “incidental beneficiaries” unless the client retained the attorney for “the principal purpose” of providing a benefit to the third party. (Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1268.)
The same principle applies here. A buyer does not seek out a mortgage broker principally to benefit the seller of a parcel of property, but rather to enable the buyer to obtain the funds to purchase the property; accordingly, the seller is only an incidental beneficiary of the relationship and may not assert a third party beneficiary claim. Civil Code section 1559 authorizes third party beneficiary claims, but “‘[t]he contracting parties must have intended to confer a benefit on the third party.’ [Citation.]” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022.) Consequently, Civil Code section 1559 “‘exclude[s] enforcement by persons who are only incidentally or remotely benefited.’ [Citation.]” (Ibid.) Thus, the trial court properly denied the sellers leave to amend to state an invalid third party beneficiary claim.
The trial court did not err in concluding the sellers stated no claim for breach of the covenant of good faith and fair dealing. This covenant is implied by law in every contract. (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031.) But because the cross-complaint alleged no facts that would establish a contract with the brokerage cross-defendants and because the sellers fail on appeal to establish they could amend the contract to state a cognizable third party beneficiary claim, they also fail to state a claim for breach of the covenant of good faith and fair dealing. They simply fail to show any possible contract on which to predicate the claim. (Id. at p. 1032[no good faith and fair dealing cause of action “absent an existing contract”].) Consequently, the trial court properly entered judgment for the brokerage cross-defendants on the sellers’ contract claims, including breach of the covenant of good faith and fair dealing.
C. The Sellers Failed to Adequately Plead Tort, Statutory, or Common Law Claims
The sellers argue the trial court erred in concluding they failed to state fraud or fraud-related claims against the brokerage cross-defendants. Specifically, the sellers alleged the brokerage cross-defendants committed one or more species of fraud including promissory fraud, concealment, and negligent misrepresentation. In contrast to the sellers’ contract claims, the trial court permitted the sellers an opportunity to amend their cross-complaint to plead these fraud causes of action adequately. Had the sellers successfully amended their cross-complaint to plead these fraud claims, the trial court would have had to revisit its earlier ruling concluding the sellers failed to state fraud-related causes of action that included misleading or unfair business practices in violation of section 17200, interference with a contract or prospective business advantage, and conspiracy. As we explain with respect to each alleged fraud claim and related causes of action, the trial court did not err in concluding the sellers failed to meet their pleading burden despite a second opportunity.
1. Promissory Fraud
The sellers failed to plead a cause of action against the brokerage cross-defendants for promissory fraud. “‘Promissory fraud’ is a subspecies of the action for fraud and deceit.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar).) “An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract.” (Ibid., italics added.) The sellers allege the brokerage cross-defendants committed promissory fraud by “represent[ing] they would procure financing for Hoang in order for the purchase of [the Blanton] property to go forward.” But the sellers pleaded no facts suggesting the brokerage cross-defendants induced the sellers to enter the Blanton property purchase agreement by making financing promises to them. (See Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331 (Wilhelm) [“every element of the cause of action for fraud must be alleged in full, factually and specifically”].) “‘This particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered.”’” (Lazar, at p. 645, original italics.)
Here, as noted in the Blanton Street purchase agreement, the buyer only promised to exert her best efforts to obtain a loan, not that she would actually procure one, and the fact the buyer sought aid from the brokerage cross-defendants in obtaining a loan does not suggest the brokerage cross-defendants made any representations to the sellers. After all, a mortgage broker is a dual agent of, and owes a fiduciary duty to, the real estate buyer who borrows money and the lender who provides the funds (see Montoya v. McLeod (1985) 176 Cal.App.3d 57, 62-65 (Montoya)), not the seller.
In their amended cross-complaint, the sellers alleged Theresa “represent[ed] to them that she is processing the loan for the Blanton purchase, and will be purchasing H[oang]’s home so the Blanton purchase can be completed.” The sellers assert Theresa’s alleged representation she “will be purchasing Hoang’s home” constituted promissory fraud. There are two reasons this new allegation of Theresa’s offer to purchase Hoang’s home, which apparently would have helped Hoang finance the Blanton Street parcel, failed to cure the sellers’ pleading defects in their promissory fraud claim.
First, the statement lacks the requisite specificity for a fraud claim: it does not state when, how, or by what means Theresa made the alleged statement to the sellers. (Lazar, supra, 12 Cal.4th at p. 645.) Notably, the sellers had alleged in their original cross-complaint that Hoang had represented that, “if necessary, ” she would sell her home to Theresa. Suddenly placing the promise of such a sale in Theresa’s mouth in the amended cross-complaint -without a date or contextual detail - raises an inference of artful pleading aimed at preserving the sellers’ claim against the brokerage cross-defendants. (See Wilhelm, supra, 186 Cal.App.3d at p. 1331 [courts must guard against “‘vague but artful pleading of fraud simply to get a foot in the courtroom door’”].)
In any event, a second problem is evident in the verb tense of Theresa’s alleged statement. Simply put, the fact that “she is processing the loan” (italics added) when she allegedly told the sellers she would purchase Hoang’s home means the alleged statement came after the parties executed the purchase agreement. Consequently, the statement could not have induced the sellers to enter that agreement, as occurs in promissory fraud. (See Lazar, supra, 12 Cal.4th at p. 638.) Accordingly, the promissory fraud claim fails.
2. Concealment
The sellers failed to plead a claim of concealment against the brokerage cross-defendants. Concealment, a form of deceit, requires “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact....” (Civ. Code, § 1710, subd. 3.) The sellers assert the brokerage cross-defendants committed the tort of concealment by failing to disclose “that Hoang was actively engaged in purchasing a second property at the same time” she had contracted to buy their property and by failing to disclose that Theresa “was acting as Hoang’s real estate agent in the purchase of the second property, ” for which Theresa “stood to realize a commission” if completed.
The intertwined premises of the sellers’ argument are that Theresa knew Hoang could not afford both properties and that she owed a duty of disclosure to the sellers. Even assuming the truth of the initial premise, the sellers’ claim falters on the second premise. (See Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613 [“the defendant must have been under a duty to disclose the fact to the plaintiff”].) As noted, a mortgage broker serves as a dual agent for the borrower and the entity loaning funds to the borrower, and therefore owes both a fiduciary duty. (Montoya, supra, 176 Cal.App.3d at pp. 62-65.) The sellers point to no facts suggesting they had an agency relationship with Theresa. (See Wyatt v. Union Mortg. Co. (1979) 24 Cal.3d 773, 782, original italics [“A mortgage loan broker is customarily retained by a borrower to act as the borrower’s agent in negotiating an acceptable loan”].) Consequently, Theresa owed no duty to disclose to the sellers Hoang’s actions or her representation of Hoang in the second transaction; indeed, doing so could constitute a breach of her “‘obligation of undivided service and loyalty....’” (Ibid.)
The sellers misplace reliance on language in La Jolla Village Homeowners’ Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 1151, that “a duty to disclose may arise without a confidential or fiduciary relationship where the defendant, a real estate agent or broker, alone has knowledge of material facts which are not accessible to the plaintiff, a buyer of real property.” In that scenario, however, various statutes, the common law, and often the real estate contract or escrow instructions impose a duty on the agent and his or her principal - the seller of the real property - to disclose latent property defects to the buyer. (See, e.g., Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 409-410, fn. 4.) The sellers here point to no similar sources of a duty in the present context for a mortgage broker to make disclosures about the borrower to a third party, i.e., the seller, and we are aware of none. In the absence of any duty of disclosure, the trial court properly concluded the sellers failed to state a concealment claim against the brokerage cross-defendants.
Disapproved on another ground in Jimenez v. Superior Court (2002) 29 Cal.4th 473, 481, footnote 1.
3. Negligent Misrepresentation
The sellers failed to plead a cause of action for negligent misrepresentation against the brokerage cross-defendants. Like the promissory fraud allegation, this claim fails for lack of specificity that the brokerage cross-defendants made any misrepresentations to the sellers. (See generally National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50 [causal elements of misrepresentation claim must be specifically pleaded].) In other words, for the brokerage cross-defendants to have caused the sellers harm by a misrepresentation, it follows the sellers had to allege the defendants made the misrepresentation to them. The sellers assert their amended cross-complaint alleged the brokerage cross-defendants “made representations regarding their ongoing efforts to obtain financing for Hoang to purchase the premises, which representations were untrue.” But the sellers’ record citations do not bear out this claim. The cited portions of the amended cross-complaint reiterate invalid claims, such as Theresa’s failure to disclose to the sellers Hoang’s offer on a second property, or allege generally that the brokerage cross-defendants “made certain promises to [the sellers] regarding various matters... including... that they would be using their best efforts to obtain financing for the purchase....” This is too general, as we explain.
First, the manner in which the brokerage cross-defendants allegedly made the misrepresentation shows it was not a misrepresentation but rather an act. The sellers alleged that on May 3, 2006, the brokerage cross-defendants obtained from the escrow company a copy of the counteroffer that formed the Blanton purchase agreement and a copy of the escrow receipt for Hoang’s $25,000 deposit. From this bare act, the sellers inferred a tort directed at them, namely that the brokerage cross-defendants “misrepresent[ed] that they are still seeking funding....” But the defect remains that the sellers identified no misstatement of fact made by the brokerage cross-defendants. The tort of negligent misrepresentation requires, as its name implies, “a misrepresentation of a past or existing material fact” (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962 (Fox)), and we cannot stretch the meaning to include the act of obtaining documents - especially where the mortgage broker’s principal, the buyer, presumably was entitled to those documents as a party to the real estate contract.
Second, even assuming the brokerage cross-defendants had represented expressly to the sellers on May 3d, while obtaining the documents from escrow, that they were still seeking funding for the buyer to complete the Blanton Street purchase, the sellers can point to no detrimental reliance on this statement if it were untrue. The purchase agreement’s 17-day window provided the buyer until the next day, May 4th, to obtain a loan and remove the loan contingency. And because the purchase agreement required the buyer’s best efforts to obtain funding, even if the sellers had learned these brokerage cross-defendants were not - as they allegedly claimed - actually seeking funding for the buyer, the sellers could not cancel the purchase agreement and put the property back on the market because the buyer’s time to obtain a loan had not run. Put another way, the sellers would have to recognize the possibility the buyer could seek lending assistance from another brokerage. The sellers identified no statements by the brokerage cross-defendants after the 17-day financing period claiming they were still seeking funding, which might have induced the sellers to consider continuing the deal with the buyer rather than placing the property back on the market. Accordingly, absent the requisite showing of induced reliance (Fox, supra, 181 Cal.App.3d at p. 962), the sellers failed to plead a claim of negligent misrepresentation against the brokerage cross-defendants.
4. Amendment
A plaintiff need only show a reasonable possibility that amendment will cure a pleading defect. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We review the trial court’s denial of leave to amend for abuse of discretion. (Ibid.) “‘[T]he burden is on the plaintiff to demonstrate that the trial court abused its discretion. [Citations.] Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citation.]’ [Citations.]” (Symonds v. Mercury Savings & Loan Assn. (1990) 225 Cal.App.3d 1458, 1463.)
The sellers contend they were entitled to leave to amend their complaint to replead their fraud causes of action a third time because they notified the court Hoang’s belated discovery responses showed “the failure to complete the purchase of [the sellers’] property was due to... Theresa Hoang’s failure to purchase Hoang’s home as represented to [the sellers].” (Italics added.) The sellers, however, provide no record reference for this exchange with the trial court or their request to amend, if they made one. In any event, their assertion is again fatally vague: they do not state Theresa represented she would purchase the home, nor that she made the representation to the sellers, nor when she made it. Consequently, as discussed, the sellers’ claims remained too vague to state fraud actions against the brokerage cross-defendants, and the trial court did not err in denying leave to amend.
5. Fraud-Related Causes of Action
Given the absence of viable fraud causes of action, the trial court did not err in concluding the sellers failed to state claims against the brokerage cross-defendants for fraud-related or otherwise unfair business practices under section 17200, interference with a contract or prospective business advantage, or conspiracy.
Section 17200 bars “any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising....” Section 17200 “‘borrows violations of other laws and treats them as unlawful practices’ that the unfair competition law makes independently actionable.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) The sellers concede their fraud claims and breach of the covenant of good faith and fair dealing “formed the basis for” their section 17200 claim. Accordingly, the sellers’ failure to state viable underlying causes of action, as discussed, also vitiated their section 17200 cause of action.
Similarly, the sellers failed to state a cause of action for interference with prospective business advantage. To state a valid claim, “the plaintiff must allege that the defendant’s conduct was ‘wrongful “by some measure beyond the fact of the interference itself.” [Citations.]’” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1220; see Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153-1154, 1164-1165; Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392-393.) The sellers claimed they anticipated an economic benefit from their relationship with Hoang, namely, income from the sale of their property or, alternately, an economic benefit from continuing to rent their property if the sale failed. But they do not explain how the brokerage cross-defendants interfered with these economic relationships or how the defendants’ conduct was independently wrongful.
The sellers’ sole record citation, at page 26 of their opening brief, for the brokerage cross-defendants’ alleged interference is simply the general allegation in the cross-complaint stating the defendants’ “actions and conduct... at all times was designed to interfere with, disturb, thwart and defeat [the sellers]’ contractual rights and economic advantage....” Given that a brokerage is not obligated to provide a borrower with funding, nor owes a duty to the seller to procure funding or even to utilize best efforts to do so, nor to provide the seller any information about the borrower, we fail to grasp how the brokerage cross-defendants interfered with the sellers’ economic relations or how their conduct constituted an independent wrong. The sellers’ citation to their general pleading allegation does not illuminate the matter. Accordingly, we discern no basis for reversal. (Denham, supra, 2 Cal.3d at p. 564; see Garcia, supra, 195 Cal.App.3d at p. 198 [“it is defendant’s burden on appeal to affirmatively demonstrate error - it will not be presumed”]; accord, Cal. Const., art. II, § 13.)
The sellers also suggest that though they did not seek an amendment, it would have been a simple matter for the trial court to allow them to reword their cross-complaint to state interference with an existing contractual relationship rather than a prospective one. They identify the Blanton Street purchase agreement with the buyer as the relevant contract. They also rely on caselaw stating that, unlike interference with prospective economic advantage, interference with an existing contract does not require “that the defendant’s conduct be wrongful apart from the interference with the contract itself.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.) But in arguing for amendment, the sellers provide no record citations nor otherwise make it any clearer how the brokerage cross-defendants wrongfully interfered with the parties’ performance of the Blanton Street purchase contract. As noted, a brokerage is under no obligation to the buyer, let alone to a third-party such as the sellers, to provide the funding to complete a real estate transaction, nor to exert best efforts on behalf of the seller to obtain funding, or provide the seller with any information about the prospective borrower. Consequently, we fail to see how an amendment to state interference with an existing contract would have made a difference.
The sellers also failed to state a conspiracy claim against the brokerage cross-defendants. The sellers assert the cross-complaint adequately “alleged a common plan was entered into by” the brokerage cross-defendants, Hoang, and Hoang’s lawyer “to create a false basis for Hoang to back out of the purchase of [the sellers]’ property.” But as the trial court observed, backing out of a contract may constitute a breach of contract, but it is not a tort. Conspiracy requires a common plan or design to commit a tort. (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582 [basis of civil conspiracy is the agreement to commit a tortious act].) Absent an allegation of an underlying tortious objective, the trial court properly concluded the sellers failed to state a claim for conspiracy.
III
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.