Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC 360128, John P. Shook, Judge.
Norminton, Wiita & Fuster, Thomas M. Norminton and Kathleen Dority Fuster for Plaintiff and Appellant.
Gaines & Stacey, Lisa A. Weinberg and Alicia B. Bartley for Defendants and Respondents.
FLIER, J.
Appellant American Diversified Properties, Inc. (ADP), brought an action against respondents RE/EX Valencia, Inc., dba Realty Executives (Realty Executives) and Sara Fincher-Schmidt (Schmidt) and Valleywide Escrow, Inc. (Valleywide Escrow), the last-named not being a party to this appeal. Realty Executives and Schmidt moved for summary judgment, which was granted. The trial court also awarded Realty Executives as the prevailing party $181,265.25 in attorney fees. We find there are triable issues of material fact and therefore reverse.
INTRODUCTION
In American Diversified Properties, Inc. v. Valleywide Escrow, Inc. (Sept. 8, 2008, B197816) (ADP I), a nonpublished opinion, we reversed an order sustaining a demurrer to the original complaint without leave to amend. The transaction at issue in ADP I and in this appeal is the same. We therefore cite the background facts set forth in ADP I:
“According to the allegations of the complaint, the Campbell Family Trust (not a party) engaged Realty Executives as brokers to sell approximately 9.49 acres of undeveloped land (hereafter the property) in Santa Clarita, California. Bradley Business Center (not a party) retained ADP as brokers in buying the property.
“On a demurrer, all material, issuable facts properly pleaded are deemed admitted. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 903, pp. 363-364.)”
“On or about March 15, 2006, ADP and Realty Executives entered into an agreement, referred to hereafter as the ‘Brokers’ Agreement, ’ which was both written and oral. The written portion of the Brokers’ Agreement was the purchase agreement (see paragraph immediately following). In the oral portion of the Brokers’ Agreement, ADP and Realty Executives agreed to split the commission 50-50 in the event of the purchase and sale of the property by their principals.
“On or about May 19, 2006, the Bradley Business Center entered into an agreement with the Campbell Family Trust to buy the property. The purchase agreement acknowledged that ADP and Realty Executives were, respectively, the brokers for the buyer and seller. The purchase agreement also provided that ADP and Realty Executives were the only brokers in the transaction.
“[Valleywide Escrow] prepared the escrow instructions for the sale of the property.” (ADP I, supra, B197816.)
ADP I was between ADP as plaintiff and Valleywide Escrow as the defendant. In substance, ADP’s case against Valleywide Escrow was that the latter had disbursed the entirety of the broker’s commission to Realty Executives despite clear instructions from ADP not to do so.
FACTS
The meeting that turned out to be crucial to this case took place on March 15, 2006. The participants were the brothers Kerry and Mark Seidenglanz on behalf of ADP and Schmidt on behalf of Realty Executives.
In its submission of additional material facts that ADP contended were disputed, ADP referred to the date of this meeting as March 14, 2006. This discrepancy is immaterial since it is undisputed that the meeting between these three individuals actually took place in March 2006, prior to the first offer on the property on March 16, 2006.
Respondents (Realty Executives and Schmidt) acknowledged in their motion for summary judgment that it was ADP’s contention that the oral portion of the Brokers’ Agreement was entered into on March 15, 2006, in the course of the meeting between Kerry and Mark Seidenglanz and Schmidt. Referring to this meeting, respondents went on to state the following as an undisputed material fact: “Sara Fincher-Schmidt did not say aloud to Kerry Seidenglanz that after deducting her costs, Realty Executives would split the commission on the sale of the Property 50/50 with ADP.”
ADP disputed this statement. Its response was in relevant part as follows: “At a meeting in March of 2006, between Schmidt, Kerry Seidenglanz, and Mark Seidenglanz, Kerry Seidenglanz told Schmidt that Mark and he were partners in the Bradley Business Center and also brokers in ADP, and ADP expected to split the Commission 50/50 if it procured a Buyer. Schmidt said she had been working on the Property a long time and had some costs and expenses she would like to recoup out of it. Kerry Seidenglanz said that was fine, and Mark Seidenglanz said that was fine.”
In its submission of additional material facts that ADP claimed were disputed, ADP stated: “53. By the words spoken, and Schmidt’s body language and expression at the March 14 Meeting, RE [Realty Executives] made the Brokers’ Agreement with ADP.” This was substantiated by references to the depositions of Mark and Kerry Seidenglanz. Next, ADP stated: “56. It is the custom in the brokerage business for brokers to make oral commission sharing agreements where there has been both a listing and cooperating broker. The custom is to divide the commission evenly, with half going to the seller’s broker and half going to the buyer’s broker.” The bases of this statement were the deposition of ADP’s broker’s expert Allan Wallace; Schmidt’s own testimony that in the 25 or 30 transactions she has shared with another broker, the commission has always been shared; and the testimony of Realty Executives’ vice president that in thousands of transaction executed by Realty Executives, only about 10 percent did not involve a sharing of commissions. This disputed material fact is repeated with specific reference to California: “In California, the custom and practice is for the listing broker and cooperating broker to agree to split the commission 50/50.” The basis for this is the deposition testimony of expert Wallace, Mark and Kerry Seidenglanz, among others.
This submission was made under the authority of subdivision (b)(3) of Code of Civil Procedure section 437c: “The [opponent’s] statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed.”
ADP also submitted as disputed material facts that Mark Seidenglanz, with 28 years of experience, and Kerry Seidenglanz with 35 years, stated that the commission sharing agreements in their experience had always been oral and always 50/50.
Kerry Seidenglanz testified at his deposition that when he asked Schmidt during the aforesaid meeting how much the total commission was, she did not reply.
THE TRIAL COURT’S RULING
The court concluded that the exchange between the Seidenglanzes and Schmidt on March 15, 2006, “does not describe a ‘sufficiently definite agreement.’ Not only is there no agreement as to the amount of the commission itself, there is also no agreement as to what ‘costs and expenses’ Fischer-Schmidt is allowed to recoup.”
This conclusion was fatal to all of the claims asserted by ADP against respondents. These were for breach of the oral agreement of March 15, 2006, against Realty Executives (first cause of action), for reasonable value of services provided against both respondents (second), for money had and received against respondents (third), for intentional and negligent interference with contract against respondents (sixth and seventh), and for intentional and negligent interference with contract against Schmidt (eighth and ninth). The balance of the action is against Valleywide Escrow.
DISCUSSION
1. It Is a Question of Fact Whether an Express Contract Was Formed
Respondents propounded as an undisputed material fact that Schmidt did not say that she would split the commission 50/50. ADP disputed this by stating that at the March 2006 meeting Kerry Seidenglanz “told Schmidt that Mark and he were partners in the Bradley Business Center and also brokers in ADP, and ADP expected to split the Commission 50/50 if it procured a Buyer. Schmidt said she had been working on the Property a long time and had some costs and expenses she would like to recoup out of it. Kerry Seidenglanz said that was fine, and Mark Seidenglanz said that was fine.”
It is not disputed that Schmidt told Kerry and Mark Seidenglanz that she would like to recoup her expenses. “A qualified acceptance is a new proposal.” (Civ. Code, § 1585.) The terms proposed in an offer must be met exactly and unequivocally for its acceptance to result in the formation of a binding contract; a qualified acceptance amounts to a new proposal or counteroffer. (Panagotacos v. Bank of America (1998) 60 Cal.App.4th 851, 855-856.) A reasonable construction (Rivers v. Beadle (1960) 183 Cal.App.2d 691, 695) of Schmidt’s statement is that she agreed to the proposed 50/50 split but she also wanted to recoup her expenses, which effectively meant that the split would not be 50/50. Schmidt’s statement was a counteroffer, which the Seidenglanz brothers immediately accepted. While we do not hold as a matter of law that an express contract was formed, it is certainly a disputed question of fact whether the exchange between Schmidt and the Seidenglanz brothers operated to form a contract.
“‘In considering expressions of agreement, the court must not hold the parties to some impossible, or ideal, or unusual standard. It must take language as it is and people as they are. All agreements have some degree of indefiniteness and some degree of uncertainty... [P]eople must be held to the promises they make. The court must not be overly fearful of error; it must not be pedantic or meticulous in interpretation of expressions....’” (Rivers v. Beadle, supra, 183 Cal.App.2d at p. 695.)
There is the additional important fact, relied upon by ADP, that custom and usage generally, and specifically in California, is that a brokers’ agreement to share commission is oral and the division is 50/50. This is supported by ADP’s expert, Schmidt’s own practice and the collective experience of the Seidenglanzes. Our Commercial Code recognizes that an agreement can be found from circumstances such as course of dealing and usage of trade. (Cal. U. Com. Code, § 1201, subd. (b)(3).) The facts as propounded by ADP show both course of dealing and usage of trade.
While it is of course true that respondents are adamant that Schmidt did not agree or assent to the contract, this only shows that this is a material disputed fact.
3. The Agreement Was Not Uncertain
The trial court erred in concluding that the agreement was not sufficiently definite. The agreement, as claimed by ADP, was that the commission was to be split 50/50; that is certainly specific enough. ADP also agreed that Schmidt could be reimbursed for her costs and expenses. It was not necessary to specifically state what those costs and expenses were.
4. The Trial Court Erred in Sustaining Certain of Respondents’ Objections to the Evidence
The portions of Mark Seidenglanz’s declaration to which objections were made can be grouped generically into statements about course of dealing, usage of trade and the making of the contract in question (objections 1, 7, 8, 9, 13 & 14); the business relationships between the Bradley Business Center, the buyer of the property, ADP and the Seidenglanz brothers (objections 2, 3, 4 & 11); and the performance of their work as brokers in the sale of the property (objections 5, 6, 10, 12 & 13). For the most part, the objections were based on the ground that the statement in question was irrelevant and should be excluded under Evidence Code section 352.
As we have shown, course of dealing and usage of trade are definitely relevant. While perhaps not of great moment, the business relationships between the various entities and persons are also relevant since they deliver a clear picture of this somewhat complex sale. The actual performance of the brokers’ functions is also clearly relevant because it certainly matters whether the Seidenglanz brothers earned their commission.
We conclude that the court erred in sustaining objections 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 and 14.
Respondents made 60 objections to Kerry Seidenglanz’s declaration; the trial court sustained 52 of these objections.
These objections can be grouped in the same three categories we have described in the instance of Mark Seidenglanz’s declaration. These objections were also based in large part on the contention that the statement in question was irrelevant and should be excluded under Evidence Code section 352. As we have explained above, all three categories reflect relevant evidence. Accordingly, for the same reason as before, all 52 rulings sustaining the objections are set aside.
In the case of both declarations, a few objections are based on the claims that the statement is a legal conclusion and that it conflicts with prior discovery responses. Our ruling does not preclude respondent from renewing the objections based on these two grounds and does not preclude the court from ruling on these renewed objections, should they be made.
Respondents objected to portions of the Lloyd and Schmidt depositions on the grounds that these depositions were not lodged with the clerk; these objections were sustained. ADP advises that this is incorrect, i.e., that the depositions were lodged with the clerk. The trial court should determine whether this is true and rule accordingly.
ADP states that the court excluded Moller’s deposition testimony; Moller was the agent assigned by Valleywide to the transaction. We see no such ruling in the record.
5. The Fee Award Is Vacated
In light of our disposition of the appeal from the order granting summary judgment, the fee award must be vacated.
DISPOSITION
The judgment is reversed. Appellant is to recover its costs in this appeal.
WE CONCUR: BIGELOW, P.J., RUBIN, J.