Opinion
H023552.
7-25-2003
WERNER H. SCHULZ, et al., Plaintiffs and Appellants, v. JOHN E. COOK, JR., et al., Defendants and Respondents.
This case involves a lawsuit brought by Werner H. Schulz and Carolyn W. Schulz, individually and as trustees of the Schulz Living Trust dated December 19, 1985 (the Schulzes), the buyers of a residence in Carmel, California. The Schulzes sued John E. Cook, Jr. and Sandra Geary Cook, the sellers, Jeffrey Britton, Jack Miller and San Carlos Agency, allegedly the sellers real estate agent and brokers, and Casper "Bud" Larson, Rita Lewis, and Coldwell Banker Del Monte (Coldwell Banker), allegedly the buyers real estate agent and brokers. On various theories, the Schulzes sought damages and rescission of the purchase contract.
The crux of the lawsuit was that defendants failed to disclose that homeowners situated between the Schulzes new home and the ocean could build up in conformity with the 18-foot height restriction and, thereby, block the Schulzes view and that owners of a neighboring residence were planning to replace the existing structure with a two-story home that would partially obstruct the Schulzes view. The trial court entered judgment in favor of the Cooks and Britton, Miller, and San Carlos Agency following its grant of their motions for summary judgment.
The Schulzes argue on appeal that the court erred in granting respondents summary judgment motions, failing to grant a continuance to allow further discovery, failing to grant a new trial, and awarding attorney fees under Civil Code section 1717. We affirm.
A. Procedural Background
On March 8, 2000, the Schulzes filed their complaint, alleging eight causes of action. The first cause of action for breach of fiduciary duty and the second cause of action for negligence were directed against defendants Larson and Coldwell Banker. The third cause of action for negligent supervision was directed against Lewis and Coldwell Banker. The fourth cause of action for fraud and the fifth cause of action for negligent misrepresentation were directed against defendants Larson, Lewis, and Coldwell Banker. The sixth cause of action for negligence and the seventh cause of action for negligent supervision were directed against respondents Britton, Miller, and San Carlos Agency. The eighth cause of action for rescission was directed against the Cooks and respondents Britton, Miller and San Carlos Agency.
Respondents San Carlos Agency, Britton, and Miller filed for summary judgment or, alternatively, summary adjudication. The Cooks also filed for summary judgment. The hearings on both motions were noticed for May 4, 2001.
In the Schulzes memorandum of points and authorities in opposition to the Cooks motion, they suggested that the court should deny the motion pursuant to Code of Civil Procedure section 437c, subdivision (h), because the Cooks depositions were set for April 23, 2001 or, alternatively, grant a continuance of the hearing on the Cooks motion.
All further statutory references to the Code of Civil Procedure unless otherwise specified.
In the Schulzes memorandum of points and authorities in opposition to the motion of respondents San Carlos Agency, Britton, and Miller, they indicated that the depositions of Bruce Britton, whom they had learned managed the agencys office, and respondent Jeffrey Britton were scheduled for April 26, 2001 and the deposition of respondent Miller was scheduled for April 30, 2001. The Schulzes asserted that the motion should be denied or, alternatively, continued to allow them to conduct the depositions.
On April 26, 2001, the Schulzes filed a first amended complaint. It added a ninth cause of action for fraud directed against the Cooks and respondents San Carlos Agency, Britton, and Miller for failing to disclose that nearby properties could be built higher and block or reduce the Schulzes view.
On May 1, 2001, the Schulzes attorney filed documents in support of an ex parte application for an order compelling, or in the alternative an order shortening the time to bring a motion to compel, the deposition of respondent Miller and production of documents. On May 2, 2001, the court granted the Schulzes application for an order shortening time and ordered the motion to compel to be heard on May 11, 2001.
On May 3, 2001, the Schulzes attorney filed documents in support of an ex parte application for an order compelling, or in the alternative an order shortening the time to bring a motion to compel, further deposition of respondent Britton.
On May 4, 2001, the court heard the motions for summary judgment. At the hearing, the Schulzes attorney did not suggest that the motions had to be denied or continued because the evidence submitted in opposition established that "facts essential to justify opposition may exist but cannot, for reasons stated, then be presented . . . ." ( § 437c, subd. (h).) The court orally granted the motions.
On May 11, 2001, the hearing on the Schulzes motion to compel was continued to May 25, 2001. Following the hearing on May 25, 2001, the court orally ordered further depositions of Jeffrey Britton and Jack Miller for the limited purpose of determining what information they may have conveyed to defendants Larson and Coldwell Banker.
By written order filed June 5, 2001, the court granted the motions for summary judgment and directed judgment to be entered in favor of the Cooks, San Carlos Agency, Britton, and Miller.
By written order filed June 18, 2001, the court ordered further deposition of Jeffrey Britton. By written order filed June 29, 2001, the court ordered further deposition of Jack Miller and ordered Miller to produce certain documents.
The Schulzes moved for a new trial on the grounds that "the evidence was insufficient to justify finding no dispute as to a material fact," there was "newly-discovered evidence," and the court should have granted their request for a continuance to depose respondent Jack Miller. A minute order shows the court denied the motion on August 17, 2001.
A formal judgment, dated and filed August 22, 2001, was entered in favor of respondents.
By written order dated and filed September 12, 2001, the court denied the Schulzes new trial motion.
The Schulzes filed a notice of appeal on September 14, 2001.
The Cooks attorney filed a motion for an award of attorney fees pursuant to Civil Code section 1717. After the hearing on the motion, the court found that the Cooks were the prevailing parties and ordered the Schulzes to pay the Cooks $ 35,360 in attorney fees. The Schulzes filed a notice of appeal from this order.
B. Summary Judgment
1. Review of Summary Judgment
A 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." ( § 437c, subd. (c).) An order granting summary judgment is reviewed de novo by an appellate court. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We consider "all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence . . . ." ( § 437c, subd. (c).) "Under Californias traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. [Citations.]" (Guz v. Bechtel National, Inc. , supra, 24 Cal.4th at pp. 334-335.)
2. Evidence
on Motion For Summary Judgment
The Schulzes did not dispute the following facts. On October 14, 1998, the Schulzes, individually and as trustees of the Schulz Living Trust dated December 19, 1985, entered into a residential purchase agreement with the Cooks to purchase the Cooks residence located on Bayview Avenue in Carmel, California. The Bayview property was described in the MLS listing as "possessing unbelievable ocean views. " The property is "one street removed from the ocean front street, which is Scenic Road, but it still possesses an ocean view from some of its rear windows and deck." The propertys purchase price was $ 3,500,000, which included $ 500,000 of personal property.
The following facts were also undisputed. The Transfer Disclosure Statement contained the disclosure that the property was located in the coastal zone and subject to an 18-foot height limitation. The Schulzes inspected the home at least five times during the months of September and October 1998, prior to the close of escrow, and were accompanied on several of these visits by defendant Larson, their real estate agent.
It was undisputed that defendants Jeffrey Britton, Jack Miller and San Carlos Agency were the listing agents and brokers for the Cooks. It was also undisputed, that prior to the close of escrow, the Schulzes "never had any oral discussions with Jeffrey Britton, or anyone employed at San Carlos Agency, Inc."
The Schulzes did not dispute that, in March 1999, they learned that a home on Scenic Road would be demolished and a new two-story home built by the Zaccarias and, as a result, a portion of their view would be blocked. In his declaration, Werner Schulz stated: "A few months after closing escrow, I learned that the Zaccarias were applying for a building permit to tear down the existing house on the Zaccaria Property and build a two story house with an underground garage which would partially block my view of the ocean. That was the first time that I learned that the Zaccaria Property and the Crass Property had the right to build up and block my propertys view of the ocean."
Werner Schulz indicated in his declaration that the primary view from the Bayview property was over the roof of the Crass property. Copies of photographs of the ocean view over the Crass property and of the rooflines of the Crass and Miller-Britton properties were attached to his declaration as exhibits. He pointed out in his declaration that, "as can be seen from the picture, the height of the Miller-Britton Property is significantly higher, at least several feet, than the height of the Crass Property roof." A copy of a photograph of the Zaccaria property during the permit approval process with netting and poles demonstrating the prospective height of the rebuilt house was attached to Schulzs declaration as an exhibit. Werner Schulz stated: "As the picture shows, once the new Zaccaria residence is completed, part of my ocean view will be blocked."
Werner Schulz also stated in his declaration that he would not have bought the property if he had known the property "could lose its ocean view anytime in the future as the result of future construction by the Crass Property or the Zaccaria Property below me" and "the whole purpose of buying the house was for the ocean view." He declared: "Because the ocean view was being promoted in the listing description as a major selling point of the property, I was led to believe that the property would continue to have that ocean view after I bought it." He stated: "Since the listing broker was using the view to induce me to buy the property, and I was paying a large amount of money for the view, I would have expected that if the defendants had any knowledge that the ocean view may be only a temporary feature, that they would have disclosed that to me."
Werner Schulz stated in his deposition that he could not recall reading the Transfer Disclosure Statement (TDS) and did not discuss it with his real estate agent, Larson. However, he acknowledged signing the TDS and his acknowledgement of receipt is dated October 24, 1999. Werner Schulz also indicated that he had inspected the residence himself and had a contractor look at the home to determine the propertys condition. He went to the property on several occasions to evaluate the view and made his own assessment. In his declaration, Werner Schulz indicated that his agent had told him that "the houses below could not build up and block that view."
Both Cooks stated in their respective declarations: "Prior to our purchase of the subject property we specifically asked Jeffrey Britton . . . about the Crass House, (the house directly in front of the subject single family residence, on Scenic Avenue, which is between the subject property and the ocean) . . . whether or not it could be built up thereby obstructing and/or blocking our view. Mr. Britton told us no, that the house was right at or near the 18 foot height limit." Both Cooks also stated in their declarations that they had "never met, spoken and/or corresponded with Mr. and/or Mrs. Zaccaria" and the Zaccarias had never told them "anything about their plans for the property."
In his deposition, John Cook indicated that, when he first visited the Bayview house before buying it, he asked his agent, Jeffrey Britton, about whether the row of houses between the property and the ocean could be built up and block the view. He recalled being told that there was an 18-foot height limitation and "the Crass house was almost there" and "so nothing would happen to that." He remembered being satisfied that the house would not be built up but understood that it was not at the maximum height. Cook stated that he did not ask Britton whether the Zaccaria property could be built up when he first visited the Bayview property.
In her deposition, Sandra Cook indicated she had been concerned that the row of houses between the home and the ocean would be built up when they first visited the home. She stated that Britton told them that building was limited by the 18-foot height restriction and indicated that the Crass property was "just about maxed out" and "chances of her changing the roofline [was] very doubtful." She stated at the time she did not notice that the roofline of the Miller property was higher than the roofline of the Crass property.
Jeffrey Britton stated in his deposition that he recalled telling the Cooks, sometime before escrow closed on their purchase of the Bayview property, that he had heard the Miller-Britton property had been "grandfathered" in at a height greater than 18 feet and that the Crass property appeared to be close to 18 feet in height but he did not know the exact height. Britton also stated he had mentioned to the Cooks that Mrs. Crass had just remodeled so "the odds of her doing anything with that property were slim" and "there was no reason that she would do anything to change the height." He believed he advised the Cooks that they should verify the height of the Crass property if they were concerned about it.
In his declaration, Jeffrey Britton acknowledged that he was the Cooks real estate agent and was employed by San Carlos Agency. Britton reiterated the contents of section III of the TDS, which stated that the property was located in the coastal zone and was subject to an 18-foot height limitation. He declared that, prior to the close of escrow, he never had any oral discussions with the Schulzes and never made any oral representations to them. He further declared that, prior to the close of escrow, he had no knowledge of the Zaccarias plans to build a two-story home on their property and had never discussed the Zaccarias plans with the Zaccarias or with Patricia Crass.
Bert Zaccaria stated in his deposition that he had never met John or Sandra Cook and had not talked with them on the phone. Laura Zaccaria likewise stated that she had never met the Cooks and had never spoken with them on the phone and had never exchanged notes or letters with them. Bert Zaccaria indicated that he had no specific recollection of ever discussing his building plans with defendant Britton or Brittons wife or with anyone he understood to work at San Carlos Agency. Laura Zaccaria stated she had had no conversations with the Brittons between Christmas 1997 and June 2000 and had no specific recollection of ever telling defendant Britton about their plans to develop their property.
Patricia Crass stated in her deposition that she had never had a conversation with Jeffrey Britton or with anybody at San Carlos Agency about the Zaccarias plans to build up their property.
In his declaration, filed April 20, 2001, the Schulzes attorney Richard Gullen stated that the Schulzes had not yet deposed Jeffrey Britton, Jack Miller, or the Cooks. Gullen indicated that the depositions of Bruce Britton and Jeffery Britton had been noticed for April 26, 2001, the deposition of Jack Miller had been noticed for April 30, 2001, and the deposition of the Cooks had been noticed for April 23, 2001.
A metroscan property profile, a quitclaim deed, and an easement agreement were attached to the attorneys declaration as exhibits. The metroscan property profile shows a Scenic Road property was transferred on August 25, 1994 by quitclaim deed to the Miller-Britton Family Limited Et. Al Partnership. The quitclaim deed, recorded on August 25, 1994, quitclaimed the property to the Miller-Britton Family Limited Partnership, Jay A.R. Miller Family Limited Partnership, and the Raymond W. Miller, Sr. Family Limited Partnership. The easement agreement, executed January 8, 1996, shows that the Cooks granted a nonexclusive easement for electrical utilities and a right of way to these three family limited partnerships. Jack Miller, whom was named as the general partner, executed the agreement on behalf of each of the three family limited partnerships.
Excerpts from the deposition of Caspar Larson were also attached as an exhibit to Gullens declaration. Larson indicated in his deposition that he knew as a matter of common knowledge that Jack Miller had an ownership interest in the property situated immediately to the front right of the Bayview property when facing the ocean. He stated that, according to what he had been told, that property had been built to the maximum height of 18 feet.
The declaration of John Till, a licensed real estate broker and attorney, also filed in opposition to the summary judgment motions, stated, among other things, that he was informed that "the Miller-Britton property was developed by Jack Miller to the maximum height allowable" and "defendants had a duty to disclose all facts materially affecting the ocean view feature of the property such as the fact that the Miller-Britton Property had been built to the maximum height allowable, and that because the roofs of the Crass Property and the Zaccaria Property were lower, they may not be built to the maximum height allowable and therefore, they may be able to build up and obstruct the ocean view." Till declared: "At a minimum, the difference in height between the roofs was a red flag that should have been disclosed."
3. No Triable Issues of Fact
All the causes of action brought against respondents, as drafted, turn on the alleged failure to disclose in accordance with a legal duty. " In the context of a real estate transaction, "it is now settled in California that where the seller knows of facts materially affecting the value or desirability of the property . . . and also knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer. [Citations.]" [Citations.] Undisclosed facts are material if they would have a significant and measurable effect on market value. [Citation.] A breach of this duty of disclosure will give rise to a cause of action for both rescission and damages. [Citation.] (Shapiro v. Sutherland, supra, 64 Cal.App.4th at p. 1544; see also Lingsch v. Savage (1963) 213 Cal. App. 2d 729, 735, 29 Cal. Rptr. 201 . . . .)" (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 410.) Breach of a duty to disclose may also give rise to an action for fraud. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 346- 347, 134 Cal. Rptr. 375, 556 P.2d 737.)
The negligence cause of action against respondents Britton, Miller and San Carlos Agency alleged: "On or about March 1998 through the close of escrow, said Defendants breached their duties as previously set forth by failing to disclose the true nature of the eighteen (18) foot building height restriction, that said restriction would not prohibit the land owners [sic] behind and adjacent to the Subject Property from constructing structures on said properties that would obstruct the view of the Subject Property, failing to disclose that the property owners of that parcel directly adjacent to the Subject Property were planning to demolish the existing structure and construct a two-story home that would partially obstruct the view from the Subject Property, and for placing misleading information on the MLS listing by stating that the property possessed unbelievable ocean views without indicating that said view could be obstructed." The negligent supervision cause of action alleged that San Carlos Agency breached its duty of supervision by failing to advise and counsel Britton and Miller regarding the information that should be given to buyers. The rescission cause of action incorporated by reference all preceding allegations. The fraud cause of action alleged: "Defendants San Carlos Agency, Jeffrey Britton and Jack Miller knew, by virtue of having sold real estate in the area of the Subject Property, and Defendants John Cook and Sandra Geary Cook had imputed knowledge and/or actual knowledge as owners of the Subject Property, that the Subject Property and the properties between it and the ocean were subject to an 18 foot height limitation, that this limitation would allow the properties between the Subject Property and the ocean to build higher, which would then block or reduce the Subject Propertys view of the ocean." It further alleged that respondents Cooks, Britton, Miller, and San Carlos Agency breached their duties by failing to disclose these facts.
The real estate agent or broker representing the seller owes the same duty of disclosure to the buyer as does the seller. (Lingsch v. Savage (1963) 213 Cal. App. 2d 729, 736, 29 Cal. Rptr. 201.) "The seller or his or her agent must have actual knowledge in order to be liable for failing to disclose a material fact. (See San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th 1048, 1055-1056 . . . .)" (Assilzadeh v. California Federal Bank, supra, 82 Cal.App.4th at p. 410.)
Sellers of residential property are also subject to statutory disclosure requirements. (Civ. Code, § 1102 et seq.) The statutorily required disclosures must be made on the proscribed form. (Civ. Code, §§ 1102.1, 1102.6.) The form requires a seller to state whether the seller is aware of any "neighborhood noise problems or other nuisances" and, if so, to explain. (Civ. Code, § 1102.6.) The statutory obligation to disclose specific items "does not limit or abridge any obligation for disclosure created by any other provision of law or which may exist in order to avoid fraud, misrepresentation, or deceit in the transfer transaction." (Civ. Code, § 1102.8.)
A sellers real estate broker or salesperson has a statutory duty to visually inspect the property and disclose to the buyer "facts materially affecting the value or desirability of the property that an investigation would reveal." (Civ. Code, § 2079.) However, it is also statutorily provided: "Nothing in this article relieves a buyer or prospective buyer of the duty to exercise reasonable care to protect himself or herself, including those facts which are known to or within the diligent attention and observation of the buyer or prospective buyer." (Civ. Code, § 2079.5.) Civil Code section 2079.3 limits the scope of the statutory duty to inspect and makes clear that this statutory duty does not include, in the case of a single family residence, "an affirmative inspection of areas off the site of the subject property or public records or permits concerning the title or use of the property." (Italics added.)
Civil Code sections 2079 and 2079.3 were "not intended to change any existing duty of a broker or salesperson to disclose material facts within the knowledge of the licensee, including the existence of nuisances or other conditions of nearby properties that may affect the value or desirability of the property offered for sale." (Stats. 1994, ch. 339, § 3, p. 2125.)
On appeal, the Schulzes contend that "the Cooks failed to disclose their knowledge that the Crass property was not at the maximum height allowable and that the touted ocean view might become obstructed or blocked in the future if either the Crass or Zaccaria properties built up." They also assert that respondent Jeffrey Britton failed to disclose in the agents section of the TDS that the Crass property and the Zaccaria property were not built to the maximum height allowed and that the ocean view might "become obstructed or blocked in the future from further construction on the Crass or Zaccaria properties."
The TDS did disclose that the property was in the coastal zone and subject to an 18-foot height restriction. "Conclusions as to how the legal or practical ramifications of disclosed facts adversely impact value are not facts subject to a duty of disclosure. (See Pagano v. Krohn (1997) 60 Cal.App.4th 1, 7 ; see also Sweat v. Hollister (1995) 37 Cal.App.4th 603, 609 [The legal ramifications of the factual nature of realty . . . and a conclusion as to how they may adversely impact value, is not a "fact" subject to required disclosure], disapproved on another point in Santisas v. Goodin (1998) 17 Cal.4th 599, 609, fn. 5 [71 Cal.Rptr.2d 830, 951 P.2d 399].)" (Assilzadeh v. California Federal Bank, supra, 82 Cal.App.4th at p. 412.)
In Sweat v. Hollister (1995) 37 Cal.App.4th 603, "the specific false statement alleged to have been contained in the disclosure document was that there existed no nonconforming use relative to the property." (Id. at p. 606.) "The disclosure statement revealed that the property was in a designated floodplain. The defect or nonconforming use which allegedly was not revealed was that because of the status of location in a floodplain the provisions of the Poway Municipal Code prevented the property from being altered or enlarged in the event of destruction by fire or other calamity." (Ibid.)
The appellate court stated: "The existence and effect of city ordinances regulating rebuilding or improvement of a house in a floodplain constitute information as readily available to the plaintiffs as to the defendants. Actionable nondisclosure relates to facts not discoverable by the plaintiffs. [Citation.]" (Id . at p. 608.) The court concluded: "The legal ramifications of the factual nature of realty, however, and a conclusion as to how they may adversely impact value, is not a fact subject to required disclosure. If the buyer of property is accurately informed as to the zoning, for instance, we believe it is not necessary for the seller also to advise concerning the detrimental aspects of any specific zoning. . . . It is not the obligation of the seller to research local land-use ordinances and advise a buyer as to their effect on the realty." (Id . at p. 609.)
Likewise, here, the existence and effect of land use law controlling the rebuilding or improvement of other residences in the vicinity of the Bayview property constituted information reasonably discoverable by the Schulzes. The respondents were not required to research the applicable law or elaborate on its potential effect on the propertys existing ocean view.
The Schulzes unsuccessfully try to distinguish Sweat v. Hollister by arguing that they "have not accused either the Cooks or their real estate representatives of failing to disclose legal ramifications" but rather are asserting that the Cooks and their legal representatives failed to disclose "the fact that the Crass house was probably not at its maximum height limitation and might be able to build up and obscure the ocean view from the subject property." (Italics added.) The heights of the various properties on Scenic Drive and the fact that the Miller-Britton propertys roofline was higher than the Crass property were visually apparent and were not facts accessible only to the sellers or other respondents. In addition, the precise height of the Miller-Britton residence was not a material fact since that information by itself would not have "a significant and measurable effect" on the Bayview propertys market value or desirability. (See Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1544.) In sum, the concern that the Crass and Zaccaria property might not be already built to the maximum legally allowable height was not an objective fact and, in any event, was a possibility "within the reach of the diligent attention and observation of the buyers." (Lingsch v. Savage, supra, 213 Cal. App. 2d at p. 735, cf. Pagano v. Krohn (1997) 60 Cal.App.4th 1, 10-11.)
In Cohen v. S & S Construction Co. (1983) 151 Cal. App. 3d 941, 201 Cal. Rptr. 173, a case cited by appellants, home buyers "were induced to pay a $ 35,000 lot premium" based on the assurances of the developers sales agent that the Declaration of Covenants, Conditions and Restrictions "protected the view from their lot and the architectural committee would not approve fence or landscaping plans which would interfere with the view." (Id. at p. 944.) The buyers sought damages from the developer and its sales agent for fraud and negligent misrepresentation. (Id. at p. 946.)
One issue in Cohen was the legal sufficiency of the complaint in pleading fraud and negligent misrepresentation. The appellate court stated: "Generally, actionable misrepresentation must be one of existing fact; predictions as to future events, or statements as to future action by some third party, are deemed opinions, and not actionable fraud . . . [Citation.] But there are exceptions to this rule: (1) where a party holds himself out to be specially qualified and the other party is so situated that he may reasonably rely upon the formers superior knowledge; (2) where the opinion is by a fiduciary or other trusted person; [and] (3) where a party states his opinion as an existing fact or as implying facts which justify a belief in the truth of the opinion. [Citations.] Examples of actionable statements under these exceptions include a sales agents representation that a condominium with structural defects was nevertheless luxurious and an outstanding investment [citation] and a realtors opinion that the purchaser of a particular lot would have an enforceable access easement. [Citations.]" (Cohen v. S & S Construction Co., supra, 151 Cal. App. 3d at p. 946.)
The appellate court in Cohen concluded that complaint stated causes of action for fraud and negligent misrepresentation because it alleged that the developer had "emphasized the developments panoramic views in its marketing and held themselves out as experts in establishing and administering homeowner associations and maintaining the aesthetic integrity of their developments." (Id . at p. 946.) Here, there were no facts produced suggesting that any respondent had made an affirmative representation regarding the future preservation of the propertys ocean view or held him or herself out as possessing superior knowledge or special information or expertise regarding the protection of that view under applicable land use law.
The Schulzes insist that a triable issue of fact exists regarding whether Britton and the Cooks should have disclosed to them the same information that was disclosed to the Cooks by Britton when the Cooks purchased the property. The Schulzes overlook the differences between the fiduciary duties owed by a buyers real estate agent to the buyer and the statutory or common law duties to disclose to a buyer where there is no fiduciary relationship.
"It is well settled in this state that the law imposes on a real estate broker the same obligation of undivided service and loyalty that it imposes on a trustee in favor of his beneficiary. (Batson v. Strehlow [1968] 68 Cal.2d 662, 674, 68 Cal. Rptr. 589, 441 P.2d 101 . . . .)" (Ford v. Cournale (1973) 36 Cal. App. 3d 172, 180, 111 Cal. Rptr. 334.) " . . . The facts that a broker must learn, and the advice and counsel required of the broker, depend on the facts of each transaction, the knowledge and the experience of the principal, the questions asked by the principal, and the nature of the property and the terms of sale. The broker must place himself in the position of the principal and ask himself the type of information required for the principal to make a well-informed decision. . . . [Citation.]" (Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18, 25.) A real estate broker has a fiduciary duty to counsel and advise the principal regarding the propriety and ramifications of the decision. (Ibid.) The evidence that, prior to the Cooks purchase of the Bayview property, Britton had a more detailed discussion with the Cooks, his own clients, regarding whether the Crass property might be built up does not establish a triable issue of fact.
As to the Zaccarias intention to build up, that was a material fact but respondents produced sufficient evidence to show that they did not know of the Zaccarias plans and, therefore, the burden shifted to the Schulzes to show a triable issue remained in regard to this undisclosed information. ( § 437c, subd. (p)(2).) The Schulzes did not produce any evidence that the Cooks or Britton had personal knowledge of the Zaccarias building plans prior to the close of escrow.
On appeal, the Schulzes also argue that respondents San Carlos Agency, Britton, and Miller are liable under Civil Code section 1088 because they represented in the listing that the property had unbelievable ocean views but did not disclose all facts that might qualify that statement. Civil Code section 1088 provides in pertinent part: "If an agent or appraiser places a listing or other information in the multiple listing service, that agent or appraiser shall be responsible for the truth of all representations and statements made by the agent or appraiser of which that agent or appraiser had knowledge or reasonably should have had knowledge to anyone injured by their falseness or inaccuracy." (Italics added.)
The listings statement regarding the quality of the existing ocean view, that it was "unbelievable," was an expression of an opinion, not ordinarily actionable. (See Agricultural Ins. Co. v. Superior Court (1999) 70 Cal.App.4th 385, 402.) In any event, as readily admitted by Werner Schulz, he made his own assessment of the quality of the existing ocean view in deciding to purchase the property and, therefore, has not shown any injury. The listing did not suggest or affirmatively represent that current law protected that view for the future or that homes situated between the Bayview property and the ocean had been built to the legal limit. As already discussed, disclosures beyond the propertys zoning and the height restriction were not required to satisfy the common law and statutory duties of disclosure. The Schulzes failed to show a triable issue of fact remained as to the listings characterization of the view.
In sum, since all causes of action against respondents were predicated upon an alleged breach of a legal duty to disclose and since the Schulzes failed to set forth sufficient facts showing any breach of such duty, no triable issue remained. Summary judgment was properly granted.
C. Failure to Grant Continuance of Summary Judgment Motions and Failure to Grant Motion for New Trial
On appeal, the Schulzes assert that the trial court erred in failing to grant a continuance of the summary judgment motions to allow for the deposition of defendant Jack Miller. They point to their memorandum of points and authorities in which they argue defendants San Carlos Agency, Britton, and Miller were obligated to "disclose their full knowledge about the Miller-Britton Property being built to the maximum height allowable, and that the Crass and Zaccaria Properties were not or may not be, at the maximum height." They contend that the court erred again by failing to grant a new trial motion based upon its error in failing to grant a continuance.
In their reply brief, appellants appear to imply that the scope of their challenge to the denial of their motion for a new trial is broader than stated in their opening brief. Although the opening brief refers to evidence offered in support of their new trial motion, its specific legal challenge to the denial of that motion does not include a claim that the trial court erred by failing to grant the motion on the ground of newly discovered evidence. Even if appellants are attempting to raise this argument in their reply brief, we decline to reach it. "Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant. [Citations.]" (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11, 142 Cal. Rptr. 429, 572 P.2d 43.) " The rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. [Citations.] [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26, 978 P.2d 1171.)
Section 437c, subdivision (h), provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due." (Italics added.)
"Subdivision (h) was added to section 437c of the Code of Civil Procedure (hereafter section 437c) to mitigate summary judgments harshness, and it mandates a continuance for the nonmoving party " upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion. [Citation.]" [Citation.] (Bahl v. Bank of America, supra, 89 Cal.App.4th at p. 395.) Moreover, the affiant is not required to show that essential evidence does exist, but only that it may exist. This, and the language stating the continuance shall be granted upon such a showing, leaves little room for doubt that such continuances are to be liberally granted. (Ibid.)" (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634.)
However, "it is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist." " (Bahl v. Bank of America, supra, 89 Cal.App.4th at p. 397.) "When lack of diligence results in a partys having insufficient information to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under Code of Civil Procedure section 437c, subdivision (h), the trial judge may deny the request for continuance of the motion. [Citations.]" (Bahl v. Bank of America, supra, 89 Cal.App.4th at p. 398.)
Here, the primary evidence apparently sought from respondent Jack Miller was that he knew the height of the Miller-Britton property on Scenic Road because of his personal involvement with that property. This is not a fact "essential to justify opposition" to the summary judgment motions. As already discussed, the precise height of the Miller-Britton property was not by itself a material fact that had to be disclosed because that information did not affect the value and desirability of the Bayview property and the relative heights of the Crass, Zaccaria, and Miller- Britton properties were within the diligent observation and attention of the Cooks.
The court did not err by failing to grant a continuance of the summary judgment motions. Therefore, the Schulzes claim that the lower court again erred by failing to grant their motion for a new trial to correct its error in failing to grant a continuance of the summary judgment motions must be rejected as well.
D. Civil Code Section 1717
Since we find the lower court correctly granted summary judgment in favor of the Cooks, there is no need to revisit the question of which party prevailed and was entitled to attorney fees and costs under Civil Code section 1717.
The judgment is affirmed. Appellants to bear costs on appeal.
WE CONCUR: Rushing, P.J., Mihara, J.