Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. 30-2007-00100744, Derek W. Hunt, Judge.
Gallagher & Moore and Shannon Gallagher for Plaintiff and Appellant.
Christopher E. Deal for Defendant and Respondent.
FYBEL, J.
INTRODUCTION
In 2004, plaintiff Randy Morris, doing business as Morris Design Partners, entered into agreements to purchase two adjacent parcels of real property in Capistrano Beach. Defendant Chicago Title Company (Chicago Title) accepted its designation as escrow holder for both transactions. In a three part assignment agreement, Morris thereafter agreed to assign his right to purchase the properties to RDH Group Development Partners (RDH), conditioned on, inter alia, RDH’s agreement to provide Morris a $2 million promissory note (the note) and a trust deed securing its obligation on the note (the trust deed). RDH’s obligation to provide the note and the trust deed was not included in any escrow instruction prepared for the transactions.
Morris sued Chicago Title for breach of contract, breach of fiduciary duty, and misrepresentation because he did not receive the note and the trust deed before or at the time escrow closed on either of the transactions. The trial court granted Chicago Title’s motion for summary adjudication as to the breach of contract and breach of fiduciary duty claims (the motion). After Morris requested dismissal of his misrepresentation claim, judgment was entered in Chicago Title’s favor. Morris contends the trial court erred by granting the motion because a triable issue of material fact exists as to whether Chicago Title was required to ensure receipt of the note and the trust deed before or at the time escrow closed because it had been provided a copy of the three-part assignment agreement containing RDH’s obligation to provide Morris with the note and the trust deed.
We affirm. “Absent clear evidence of fraud, an escrow holder’s obligations are limited to compliance with the parties’ instructions.” (Summit Financial Holdings, Ltd v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 711 (Summit).) For the reasons discussed in detail post, the undisputed evidence showed Chicago Title was never instructed by anyone to ensure receipt of the note and the trust deed before allowing escrow to close in the transactions. The trial court did not err.
FACTS
I.
The Church Property
On February 13, 2004, Morris entered into an agreement to purchase real property located in Capistrano Beach (the Church Property) that was owned by the San Clemente Community Evangelical Free Church (the Church). On February 18, Morris and the Church opened an escrow with Chicago Title for the sale of the Church Property. Chicago Title escrow officer Peggy Brennan sent an escrow acceptance letter to Morris and the Church, detailing the terms under which Chicago Title would agree to be the escrow agent. Brennan provided general escrow instructions which included escrow terms that any amendments or supplements to the escrow instructions must be in writing and that Chicago Title was not responsible for any other agreements entered into by the parties unless Chicago Title has “specifically agreed to accept” any such agreement as escrow instructions.
The escrow closing date for the Church Property was continued several times. In September 2004, Morris informed Chicago Title that he was assigning his right to purchase the Church Property to RDH. (Morris had entered into a three part assignment agreement with RDH, hereafter referred to as the assignment agreement.) Morris provided Chicago Title with part one of the assignment agreement, which detailed terms under which Morris was assigning his right to purchase the Church Property to RDH. Part one of the assignment agreement stated in part: “It is clearly understood and agreed herewith that the purpose of this assignment is to execute the Vacant Land Purchase Agreement dated June 16, 2004. In the case of conflict, the above Agreement dated June 16, 2004 shall prevail.” (The vacant land purchase agreement was a form purchase agreement executed by Morris and RDH in furtherance of Morris’s assignment of the right to purchase the Church Property and also, as addressed below, the adjacent property. We refer to the vacant land purchase agreement as the June 16, 2004 agreement.) Part one of the assignment agreement also stated: “[T]his assignment and purchase closing shall only be executed concurrently with Assignments Numbered Two and Three, and only with Chicago Title.”
In October 2004, Chicago Title prepared an amendment to the escrow instructions, which stated in part: “Your original vacant land purchase agreement and joint escrow instructions dated February 13, 2004 and any amendments and/or supplements thereto, are hereby amended and/or supplemented as set forth herein: [¶] The buyer herein Morris Design Partners hereby assign their interest to RDH Group Development Corp. All parties agree to said assignment and escrow holder is hereby instructed to correct said deed even though previously signed, vesting interest as RDH Group Development Corp. [¶] RDH Group Development Corp., will be repaying said funds deposited by Morris Design Partners, in the amount of $451,000.00. Said funds will be deposited and disbursed as follows: [¶] On October 8, 2004 RDH Group Development Corp., will deposit $25,000.00. On October 8, 2004 an additional $225,000.00 to be deposited by RDH Group Development Corp., said funds are non refundable. [¶] Escrow holder is hereby instructed to release said funds in the amount of $250,000.00 to Morris Design Partners as reimbursement of funds deposited by Morris Design Partners and released to San Clemente Free Evangelical Church. We understand that this escrow has not been completed and that no papers have been filed for record in connection therewith. This order for disbursement is given with full knowledge of the condition of Escrow and Title to the property therein described. This payment is without liability or recourse upon you and you are hereby relieved of any and all liability whatsoever in the event that this escrow does not close and all future disbursements prior to close of escrow. [¶] On October 15, 2004, RDH Group to deposit an additional $250,000.00, said funds are non refundable. [¶] Escrow holder is hereby instructed to release said funds in the amount of $201,000.00 to Morris Design Partners as reimbursement of funds deposited by Morris Design Partners of which $200,000.00 was released to San Clemente Free Evangelical Church, without further instructions. [¶] Said close of escrow to be on or before November 20, 2004 with a sales price of $2,700,000.00, concurrently with escrow #48551140. [¶] This does not affect any ob[]ligations that Morris Design Partners has pursuant to the purchase agreement dated February 13, 2004. [¶] ALL OTHER TERMS AND CONDITIONS ARE TO REMAIN THE SAME.” Chicago Title sent the proposed amendment to the escrow instructions to the Church and to Morris through his broker, Brian MacDonald. Morris signed the amendment on October 20, 2004; it was also signed by the Church and RDH.
On December 28, 2004, Chicago Title prepared another amendment to the escrow instructions, which was signed by Morris, RDH, and the Church, and provided: “Your original vacant land purchase agreement and joint escrow instructions dated February 13, 2004 and any amendments and/or supplements thereto, are hereby amended and/or supplemented as set forth herein: [¶] The buyer herein Morris Design Partners hereby assign their interest to RDH Group Development Corp. All parties agree to said assignment and escrow holder is hereby instructed to correct said deed even though previously signed, vesting interest as RDH Group Development Corp. [¶] All funds deposited on behalf of the original buyer are hereby transferred to RDH Group Development Corp. [¶] This does not affect any ob[]ligations that Morris Design Partners has pursuant to the purchase agreement dated February 13, 2004. [¶] ALL OTHER TERMS AND CONDITIONS ARE TO REMAIN THE SAME.”
In a letter dated December 30, 2004, Morris informed escrow officer Brennan, “I herewith withdraw my previous assignment and transfer of all of the deposited funds on behalf of the original buyer to RDH... per the prior approved Amendment to Escrow dated this date. [¶] You are not to allow RDH to utilize these funds for the purchase of this property. RDH is to provide all of the purchase money and fees required to close this escrow and all previously deposited funds are to be returned to Morris De[s]ign Partners at the close of this escrow.”
Escrow on the purchase of the Church Property closed on January 11, 2005, at which time Chicago Title issued a $451,000 check to Morris in compliance with his instruction in the December 30, 2004 letter.
II.
The Manderson Property
In April 2004, Morris entered into an agreement providing him the option to purchase property that adjoined the Church Property (the Manderson Property). On September 17, 2004, Morris and RDH opened an escrow with Chicago Title for the purchase of the Manderson Property. Morris assigned his rights under the option agreement to purchase the Manderson Property to RDH.
In his declaration in opposition to Chicago Title’s motion for summary judgment, Morris stated that escrow was opened before he assigned his option to purchase the Manderson Property to RDH, although he did not dispute that he and RDH opened escrow on the purchase of the Manderson Property. Chicago Title asserted that escrow was opened after Morris assigned his option to purchase to RDH.
On September 21, 2004, Chicago Title issued the same general escrow instructions for the Manderson Property transaction as it had issued for the Church Property transaction. Morris asserted in opposition to the motion he signed the September 21 general escrow instructions because, at that time, he was still the purchaser of the Manderson Property.
Morris contended that when escrow was opened, Chicago Title was provided with a copy of the option agreement, and “[t]hereafter” was provided with a copy of the assignment agreement. Chicago Title acknowledged receiving a copy of part two of the assignment agreement, which contained details of the terms relating to Morris’s assignment of his right to purchase the Manderson Property to RDH. Part two of the assignment agreement included (1) RDH was to close on the purchase of the Manderson Property on November 20, 2004 for $1 million and repay Morris through escrow $35,000 in option payments; (2) the purpose of part two of the assignment agreement was to execute the June 16, 2004 agreement and that in the case of a conflict, the June 16, 2004 agreement “shall prevail”; (3) “this assignment and purchase closing shall only be executed concurrently with Assignments Numbered One and Three, and only with Chicago Title”; (4) “all closing costs to be paid by Morris... shall not be assigned but paid by Morris... from the funds due in Addendum (Assignment Number Three)”; and (5) the prevailing party in any legal action necessary to enforce the terms and conditions of part two of the assignment agreement shall recover all costs of suits and reasonable attorney fees.
On December 22, 2004, Chicago Title prepared an amendment to the escrow instructions, which stated in pertinent part: “Your original escrow instructions dated April 1, 2004 and any amendments and/or supplements thereto, are hereby amended and/or supplemented as set forth herein: [¶] The buyer herein Morris Design Partners her[e]by assign their interest to RDH Group Development Corp[.] All parties agree to said assignment and escrow holder is hereby instructed to correct said deed even though previously signed with new buyer’s vesting interest as RDH Group Development Corp. [¶] This does not affect any ob[]ligations that Morris Design Partners has pursuant to the option agreement dated April 1, 2004. [¶] Buyer to obtain a new loan in the amount of $690,000.00 and escrow holder is hereby instructed to charge the buyer for all loan fees for same. [¶] A Deed of Trust, to be recorded on your form, executed by the vestee named herein, securing a note in the amount of $400,000.00 in favor of INVEST[]MENT PROPERTY EXCHANGE SERVIC[E]S, INC. payable at Santa Ana, California with interest from date of close of escrow on the unpaid principal at the rate of 0% per annum; all due and payable on or before December 31, 2004. [¶] In the event this note is not paid off on or before December 31, 2004 Trustor agrees to pay the Bene[fici]ary 8% interest from December 31, 2004 until paid in full. [¶] You are authorized to complete the necessary dates on the above described executed note at the close of escrow. [¶] The Deed of Trust securing this note... to contain[] the following provision: [¶] In the event Trustor, without the prior written consent of the Beneficiary, sells, agrees to sell, transfers or conveys its interest in said real property or any part thereof or any interest therein, Beneficiary may at its option declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require such consent to future or successive transactions. The terms ‘Trustor’ and ‘Beneficiary’ include their successors. [¶] Escrow to close on or before December 27, 2004. [¶] All parties are aware that this escrow is NOT closing concurrently with escrow #48551025. [¶] ALL OTHER TERMS AND CONDITIONS ARE TO REMAIN THE SAME.” The December 22 amendment to the instructions was forwarded to and signed by Morris, RDH, and the sellers of the Manderson Property. Escrow for the sale of the Manderson Property closed on December 27, 2004.
III.
Part Three of the Assignment Agreement
MacDonald, stated, in his declaration filed in opposition to the motion, that he provided parts one, two, and three of the assignment agreement to Chicago Title by delivering them to Brennan. Part three of the assignment agreement provided that in consideration for the assignment of Morris’s right to purchase the Church Property and the Manderson Property, RDH “agree[d] to execute a note and second trust deed for $2 million dollars payable to Morris Design Partners and Drummond Realty” (referenced throughout this opinion as the note and the trust deed). Like parts one and two of the assignment agreement, part three contained a similar provision requiring that “this assignment and purchase closing shall only be executed concurrently with Assignments Numbered One and Two, and only with Chicago Title.”
Brennan stated, in her declaration in support of the motion, that she was not familiar with part three of the assignment agreement or the June 16, 2004 agreement and that neither appeared in Chicago Title’s files. None of the original or amended escrow instructions referred to the note or the trust deed. Brennan also stated she was never instructed to ensure receipt of the note and the trust deed before escrow closed on either the Church Property or the Manderson Property. She further stated no party, including Morris, ever told her the amended escrow instructions failed to properly document the agreements at issue in the escrow transactions. Morris acknowledged, in his declaration in opposition to the motion, that he never instructed Chicago Title to prepare any instructions.
MacDonald stated in his declaration he had twice discussed with Brennan that Morris was to receive the note and the trust deed concurrent with the close of the purchase of the Church Property and the Manderson Property and that Brennan had told him Chicago Title “would be able to consummate the transaction as contemplated and ensure that escrow would not close” unless Morris received those documents.
PROCEDURAL HISTORY
Morris filed a complaint against Chicago Title, containing claims for breach of contract, breach of fiduciary duty, and misrepresentation. Chicago Title filed a motion for summary judgment or, in the alternative, summary adjudication of issues. As pertinent to this appeal, Chicago Title moved for summary adjudication as to Morris’s breach of contract and breach of fiduciary duty claims on the ground Chicago Title “did not breach any escrow instructions from the parties to the Church Property or Manderson Property escrows.”
Chicago Title also moved for summary judgment/summary adjudication on the ground Morris could not prevail on his misrepresentation claim because Chicago Title “did not represent that it would not close the Manderson Property or Church Property escrows without obtaining the RDH Note or RD[H] Deeds of Trust, ” or on his claim for punitive damages because Chicago Title “did not act with malice, oppression or fraud when it closed the Manderson [P]roperty and Church Property escrows.”
The trial court granted the motion as to the breach of contract and breach of fiduciary duty claims, but denied the motion as to the misrepresentation claim. On its own motion, the court set a hearing for a motion for judgment on the pleadings as to the misrepresentation claim. Morris thereafter filed a request for dismissal of the misrepresentation claim without prejudice and the court clerk entered dismissal of that claim accordingly. Judgment was entered in Chicago Title’s favor and Morris appealed.
DISCUSSION
I.
Standard of Review and Burdens of Proof
We review orders granting summary judgment or summary adjudication de novo. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35.) A motion for summary judgment or summary adjudication is properly granted if all the papers submitted show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
Section 437c, subdivision (p)(2) of the Code of Civil Procedure provides: “For purposes of motions for summary judgment and summary adjudication: [¶]... [¶] (2) A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross defendant has met that burden, the burden shifts to the plaintiff or cross complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”
II.
Chicago Title Met Its Initial Burden of Proof by Producing Evidence Showing It Was Never Instructed to Ensure Receipt of the Note and the Trust Deed Before Escrow Closed.
In Summit, supra, 27 Cal.4th at page 711, the California Supreme Court stated: “‘An escrow involves the deposit of documents and/or money with a third party to be delivered on the occurrence of some condition.’ [Citations.] An escrow holder is an agent and fiduciary of the parties to the escrow. [Citations.] The agency created by the escrow is limited-limited to the obligation of the escrow holder to carry out the instructions of each of the parties to the escrow. [Citations.] If the escrow holder fails to carry out an instruction it has contracted to perform, the injured party has a cause of action for breach of contract.”
The Supreme Court further stated in Summit, supra, 27 Cal.4th at page 711: “In delimiting the scope of an escrow holder’s fiduciary duties, then, we start from the principle that ‘[a]n escrow holder must comply strictly with the instructions of the parties. [Citations.]’ [Citation.] On the other hand, an escrow holder ‘has no general duty to police the affairs of its depositors’; rather, an escrow holder’s obligations are ‘limited to faithful compliance with [the depositors’] instructions.’ [Citations.] Absent clear evidence of fraud, an escrow holder’s obligations are limited to compliance with the parties’ instructions.”
Thus, under Summit, to prove breach of contract or breach of fiduciary duty against an escrow holder, a plaintiff must prove the escrow holder failed to carry out the instructions of the parties to the escrow. Morris’s breach of contract and breach of fiduciary duty claims are solely based on the allegation Chicago Title failed to ensure receipt of the note and the trust deed from RDH before escrow closed on the Church Property and the Manderson Property transactions.
As discussed in detail post, Chicago Title produced the following evidence showing that it was never instructed to obtain the note or the trust deed before escrow closed: (1) the original escrow instructions for both the Church Property and the Manderson Property transactions did not include any reference to the note or the trust deed; (2) the original escrow instructions for both the Church Property and the Manderson Property were signed by all the parties, including Morris; (3) Brennan prepared amended escrow instructions for the Church Property transaction, which contained terms set forth in part one of the assignment agreement; (4) the amended escrow instructions for the Church Property transaction did not include any reference to the note or the trust deed, and stated in part that “ALL OTHER TERMS AND CONDITIONS ARE TO REMAIN THE SAME”; (5) all of the parties, including Morris, signed the amended escrow instructions for the Church Property transaction; (6) Brennan prepared the amendment to the escrow instructions for the Manderson Property transaction, which contained terms set forth in part two of the assignment agreement; (7) the amendment to the escrow instructions for the Manderson Property transaction did not include any reference to the note or the trust deed, and stated in part, “ALL OTHER TERMS AND CONDITIONS ARE TO REMAIN THE SAME”; (8) no party ever complained to Chicago Title that either the original escrow instructions or amended instructions failed to properly document all the conditions of escrow; (9) Chicago Title was never instructed to obtain or prepare the note or the trust deed; (10) Chicago Title was never instructed not to close escrow on either transaction before obtaining the note and the trust deed; and (11) Morris first complained to Chicago Title that it had wrongfully permitted escrow to close in both transactions without first obtaining the note and the trust deed by serving Chicago Title with service of process in this action.
Chicago Title asserted in its moving papers that it did not know whether Morris had signed the original escrow instructions prepared for the Manderson Property transaction. In opposition to the motion, Morris stated he had signed the original escrow instructions.
We therefore conclude Chicago Title met its initial burden of proof in moving for summary adjudication as to the breach of contract and breach of fiduciary duty claims by producing evidence showing it had not been instructed to obtain the note and the trust deed before or upon the close of escrow for either of the two transactions. Under Code of Civil Procedure section 437c, subdivision (p)(2), the burden shifted to Morris to show that a triable issue of material fact existed as to that common element.
III.
Morris Did Not Meet His Burden of Establishing the Existence of a Triable Issue of Material Fact.
Morris acknowledged in his declaration filed in opposition to the motion, “I do not recall ever instructing [Chicago Title] to prepare any instructions, ” but further stated, “I believe it was implied that that, upon receipt of the transactional documents, [Chicago Title] would prepare those instructions which were necessary to carry out the parties’ agreement.” MacDonald stated in a declaration that “[a]fter the Assignment Agreement had been executed, I delivered an executed copy of the agreement (all three parts) to Peggy Brennan. I also delivered to her a copy of the RDH Agreement.” (The RDH agreement is defined in Morris’s declaration as constituting the June 16, 2004 agreement.)
For purposes of summary adjudication, we accept Morris’s evidence that Brennan received a copy of part three of the assignment agreement as well as the June 16, 2004 agreement. But Morris did not produce any evidence as to when MacDonald delivered those documents to Brennan. If they were delivered after escrow closed on the Church Property and the Manderson Property transactions, Chicago Title would not be liable. Paragraph 13 of the general escrow instructions for each transaction states: “The parties hereto, by execution of these instructions acknowledge that the escrow holder assumes no responsibility or liability whatsoever for the supervision of any act or the performance of any condition which is a condition subsequent to the closing of this escrow.”
Even assuming Morris produced evidence showing Brennan received both documents before either escrow closed, neither of the documents contains any language that can be fairly construed as an instruction to Chicago Title that it must obtain the note and the trust deed before or at the time escrow closed. With regard to the note and the trust deed, part three of the assignment agreement simply states that RDH was “to execute a note and second trust deed for $2 million dollars payable to Morris Design Partners and Drummond Realty.” It does not provide for the timing of the execution of these documents, much less their delivery to Chicago Title or Morris. Part three of the assignment agreement also states, “[i]n addition, this assignment and purchase closing shall only be executed concurrently with Assignments Numbered One and Two, and only with Chicago Title.” This reference does not fairly communicate an instruction to Chicago Title that it was obligated to ensure receipt of the note and the trust deed before either escrow closed.
As discussed ante, the evidence shows Chicago Title prepared proposed amendments to the escrow instructions containing the terms it understood to be relevant to the escrow of each transaction. Neither amendment referred to the note or the trust deed; both amendments stated that all other escrow terms remained the same except those specified in the amended escrow instructions, and all of the parties, including Morris, signed each of the amended instructions prepared by Chicago Title.
Morris suggests the June 16, 2004 agreement, which contained joint escrow instructions and was delivered to Brennan on behalf of Chicago Title, triggered Chicago Title’s obligation to follow the terms of that agreement and prepare express instructions containing such terms. The form general escrow instructions provided by Chicago Title for each transaction state at paragraph number 12, however, that “[i]n the event that any Offer to Purchase, Deposit Receipt, or any other form of Purchase Agreement is deposited in this escrow, you, as escrow holder, are not to be concerned with the terms of such document and are relieved of all responsibility in connection therewith. The foregoing is not applicable in any transaction in which [Chicago Title] has specifically agreed to accept an Offer to Purchase, Deposit Receipt or other form of Purchase Agreement as escrow instructions. In any event, you are not to be concerned or liable for items designated as ‘memoranda’ in these escrow instructions nor with any other agreement or contract between the parties.” (Italics added.) As discussed ante, Morris has not produced any evidence Chicago Title “specifically agreed” to accept the terms of the June 16, 2004 agreement and part three of the assignment agreement by preparing amended escrow instructions to that effect.
In any event, as to the note and the trust deed, the June 16, 2004 agreement solely stated, “Randy Morris will carry the note on the balance owed ($2.0 million)”; it does not mention the trust deed. Thus, even if Chicago Title had agreed to accept the June 16, 2004 agreement as further escrow instructions, the agreement does not provide that RDH shall produce the note and the trust deed before or at the closing of escrow.
In the appellant’s opening brief, Morris argues, “[i]n the event of a conflict or apparent error in instructions, the escrow holder is obliged to take corrective steps before obeying questionable instructions.” Morris further argues that Chicago Title admittedly received parts one and two of the assignment agreement in which each references part three of the assignment agreement and each states the “assignment and purchase closing” shall only be executed concurrently with all three parts of the assignment agreement. Thus, Morris’s argument continues, Chicago Title was, at a minimum, on notice of the existence of part three of the assignment agreement, which triggered Chicago Title’s duty to clarify the terms of that agreement before closing escrow as to either the Church Property or the Manderson Property. Chicago Title, however, did seek clarification of its obligations as escrow holder by, for example, preparing amended instructions, which did not reference the note or the trust deed, and were approved by the parties, including Morris.
Morris also argues, “the declarations of Morris and MacDonald both evidence that each of the declarants spoke with Peggy Brennan about the transaction with RDH and the fact that Morris was supposed to be provided with the Note and Deed of Trust at the time escrow closed.... In addition, completely contrary to Brennan’s declaration that she was never informed that RDH had agreed to pay Morris $2.0 million dollars for the rights to acquire the properties..., RDH’s lender specifically inquired of Brennan as to what arrangements she had made with respect to the Morris Note and Deed of Trust.... [¶] Based on the foregoing, ... contrary to the assertions made by [Chicago Title], [Chicago Title] was aware of the terms of the transaction between Morris and RDH and that it had been provided copies of the relevant documents which addressed the transaction.” In addition, MacDonald stated in his declaration that he believed he twice discussed with Brennan RDH’s agreement to provide Morris the note and the trust deed “concurrent with the close of the purchase of the properties” and that Brennan stated she thought Chicago Title “would be able to consummate the transaction as contemplated and ensure that escrow would not close unless Morris received the Morris Note and Trust Deed.”
As discussed ante, however, the general escrow instructions that applied to each transaction established “[a]ny amendments of or supplements to any instructions affecting escrow must be in writing.” (See Claussen v. First American Title Guaranty Co. (1986) 186 Cal.App.3d 429, 438 [lender’s inquiry about whether the buyer had deposited a downpayment into the escrow account “did not amount to an escrow condition” even if the “question communicated [the] expectation the payment would pass through escrow”].)
The cases cited by Morris are distinguishable because they involved circumstances in which the escrow holder either acquired material information unknown to the principal or was informed of an error in the escrow instructions by the principal, which the escrow holder failed to correct. (See Spaziani v. Millar (1963) 215 Cal.App.2d 667, 681 683 [escrow company failed to inform seller the buyer’s loan varied from what had been agreed to by the parties]; Diaz v. United California Bank (1977) 71 Cal.App.3d 161, 166 [escrow company failed to clarify a possible error regarding the amount of consideration required in the escrow instructions after being notified of the error].)
As Morris failed to carry his burden of demonstrating a triable issue of material fact as to whether Chicago Title failed to follow the escrow instructions provided for either the Church Property or the Manderson Property transaction, the trial court did not err by granting summary adjudication as to Morris’s claims for breach of contract and breach of fiduciary duty.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.