Opinion
B323134
05-02-2024
JEREMY DECUIR et al., Plaintiffs and Appellants, v. WEST COAST ESCROW, Defendant and Respondent.
Law Offices of Lloyd Kirschbaum and Lloyd Kirschbaum for Plaintiffs and Appellants. Garrett & Tully, Ryan C. Squire and Scott B. Mahler for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, . No. 20STCV16242 Timothy Patrick Dillon, Judge.
Law Offices of Lloyd Kirschbaum and Lloyd Kirschbaum for Plaintiffs and Appellants.
Garrett & Tully, Ryan C. Squire and Scott B. Mahler for Defendant and Respondent.
CURREY, P. J.
INTRODUCTION
Ten months after they purchased their home, Jeremy Decuir and Jessica Clark (collectively, the Buyers) discovered that their laundry room, an addition on their property's northeast corner, had been built without a permit. They then sued West Coast Escrow (WCE) for fraud and negligent misrepresentation, alleging they were entitled to damages because they would not have bought the property at the agreed upon price had WCE disclosed a report it received while escrow was open, which stated the home had an unpermitted addition.
WCE moved for summary judgment, arguing the Buyers' claims failed because undisputed facts demonstrate they cannot prove that, in agreeing to purchase the property, they actually and justifiably relied on any alleged misrepresentations by WCE regarding the unpermitted addition. The trial court sustained most of WCE's objections to the Buyers' evidence and granted summary judgment. We affirm.
BACKGROUND
On March 5, 2019, the Buyers signed the "Probate Purchase Agreement and Joint Escrow Instructions" (Purchase Sale Agreement) and agreed to purchase real property in Inglewood from The Estate of Chrispin H. Edwards (the Seller). They also signed "Contingency Removal No. 1," which removed all contingencies upon their offer to purchase the property. The next day, WCE opened escrow for the transaction. Based on the "Confirmation of Real Estate Agency Relationships" signed by the Buyers on March 20, 2019, Ronald G. Jackson and Erik Miles represented the Buyers and the Seller as dual agents in the transaction. Jackson and Miles both worked for the same real estate brokerage firm, Compass.
Escrow closed on April 5, 2019. Subsequently, on February 18, 2020, while attempting to obtain a permit to repair the property's roof, Decuir received a copy of the "Report of Building Records and Code Violations" signed by a building inspector on March 14, 2019 (Pre-Sale Report). The Pre-Sale Report contains the following comments by the inspector: "Exterior inspection only. One story single family dwelling with detached 2-car garage. 4'x8' room addition at the northeast rear of dwelling, built without permit. Must submit plans and obtain permits and inspection to legalize." The Buyers assert they did not learn of the Pre-Sale Report or its contents until Decuir received it in February 2020.
The Buyers filed their operative second amended complaint (SAC) in November 2020. The SAC asserts against WCE claims for fraud and deceit (first cause of action) and negligent misrepresentation (second cause of action). In short, the Buyers allege they are entitled to damages because WCE improperly misrepresented "[t]hat the [p]roperty was not in violation of any municipal codes from the City of Inglewood regarding any portions of the [p]roperty having been built without a proper permit from the City," and the Buyers "relied on [this misrepresentation] in deciding to proceed with the purchase of the [p]roperty[.]"
The SAC also asserts against Jackson, Compass, and Pacific Union International, Inc., claims for fraud and deceit, negligent misrepresentation, and breach of contract. These defendants are not parties to this appeal.
WCE moved for summary judgment. In its amended motion, WCE argued that the Buyers claims' fail because they cannot prove they actually or justifiably relied on its alleged misrepresentations regarding the property's unpermitted addition in deciding to purchase it. Specifically, it asserted: (1) before it opened escrow for the transaction, the Buyers waived all contingencies on their purchase offer; (2) the Buyers had imputed knowledge of the Pre-Sale Report and its contents, as Jackson received a copy of it while escrow was still open; and (3) the escrow instructions did not require WCE to disclose any reports relating to the property's compliance with municipal permitting laws.
Following a hearing held in June 2022, the trial court took the matter under submission. It later issued a comprehensive and detailed written order granting WCE's motion. In rendering its decision, the trial court also determined the declaration by Lawrence Jacobson, offered in support of the Buyers' opposition (Jacobson Declaration), was "not admissible because it contains unsupported and impermissible legal conclusions regarding an alleged duty."
The Buyers appeal from the judgment in WCE's favor.
DISCUSSION
I. Exclusion of Jacobson Declaration
A. Governing Principles and Standard of Review
"'A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert's opinion will assist the trier of fact.' [Citation]. 'However, even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. [Citation.] For example, an expert's opinion based on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence. [Citations.] Similarly, when an expert's opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an "expert opinion is worth no more than the reasons upon which it rests."'" (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155 (Sanchez).) "These rules apply to expert witness declarations submitted in connection with a motion for summary judgment." (Ibid.)
"We review the trial court's ruling on the admissibility of expert testimony for abuse of discretion." (Sanchez, supra, 8 Cal.App.5th at p. 154.)
B. Analysis
In asserting the Jacobson Declaration should not have been excluded, the Buyers argue: "The [trial] [c]ourt found that Mr. Jacobson[ ] was testifying as a lawyer, providing legal opinions. Such was not the case. Mr. Jacobson is a lecturer, author, and expert witness regarding escrow transaction [sic], as reflected in his extensive resume. The [t]rial [c]ourt's ruling is contrary to the requirement that declarations in opposition to the motion [for summary judgment] should be accepted as true, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion." As discussed below, we do not agree with their argument.
According to his declaration, Jacobson is an attorney with a practice "substantial[ly] devoted to business, real estate, legal malpractice and real estate brokerage matters." He opines WCE "fell below the standard of care for an escrow company in a real estate escrow transaction" because: (1) it failed to maintain a complete file for the transaction; (2) it "ha[d] a duty" to forward a copy of the Pre-Sale Report it received from Compass to the Buyers per Chapter 11, Article 8, Section 11-55 of the Inglewood Municipal Code; and (3) after the Buyers learned of the unpermitted addition, WCE forged their signatures on its copy of the Pre-Sale Report.
As noted above, the trial court sustained most of WCE's objections to the Jacobson Declaration and concluded it "is not admissible because it contains unsupported and impermissible legal conclusions regarding an alleged duty." We discern no abuse of discretion in this ruling for two reasons. First, as the trial court correctly observed, "it is well settled that 'expert testimony is incompetent on the . . . question whether [a legal] duty [of care] exists because it is a question of law for the court alone' to decide [citations]." (QDOS, Inc. v. Signature Financial, LLC (2017) 17 Cal.App.5th 990, 1004.) Second, Jacobson's opinions are "'purely conclusory because [they are] unaccompanied by . . . reasoned explanation[s] connecting the factual predicates to [his] ultimate conclusion[s].'" (Sanchez, supra, 8 Cal.App.5th at p. 155.) Thus, his "'opinion[s] ha[ve] no evidentiary value because an "expert opinion is worth no more than the reasons upon which it rests."'" (Ibid.)
WCE's objections have not been included in the appellate record. The trial court's analysis, however, clearly sets forth the reasons underlying its evidentiary ruling and adequately enables this court to review it for abuse of discretion.
We further conclude the trial court's ruling does not-as the Buyers contend-run afoul of the principles governing its consideration of evidence on summary judgment. While the trial court may not pass upon a declarant's credibility and must accept the declarant's factual assertions as true, this is only so where the declaration is admissible. (See Code Civ. Proc., § 437c, subd. (c) ["In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court" (italics added)]; see also Forest Lawn Memorial-Park Assn. v. Superior Court (2021) 70 Cal.App.5th 1, 8 ["Although a court does not weigh the evidence at summary judgment, 'it does consider the competency of evidence presented'"].) And, for the reasons discussed above, we discern no abuse of discretion in the trial court's exclusion of the Jacobson Declaration.
II. WCE's Entitlement to Summary Judgment
A. Standard of Review
"A party is entitled to summary judgment only if there is no triable issue of material fact and the party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. (Id., subd. (p)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to present evidence creating a triable issue of material fact. (Ibid.) A triable issue of fact exists if the evidence would allow a reasonable trier of fact to find the fact in favor of the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [(Aguilar)].)
"We review the trial court's ruling on a summary judgment motion de novo, liberally construe the evidence in favor of the party opposing the motion, and resolve all doubts concerning the evidence in favor of the opponent. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) We must affirm a summary judgment if it is correct on any of the grounds asserted in the trial court, regardless of the trial court's stated reasons." (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 636-637.)
B. Analysis
We begin our analysis by setting forth the essential elements of the Buyers' claims. "'The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or "scienter"); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.'" (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) "'The tort of negligent misrepresentation[ ] [is] a species of the tort of deceit.' [Citation.] 'The elements of . . . negligent misrepresentation are "(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage."'" (Borman v. Brown (2021) 59 Cal.App.5th 1048, 1060.)
On appeal, WCE asserts the Buyers cannot prevail on their claims because they cannot establish they actually or reasonably relied on its alleged misrepresentations regarding the property's unpermitted addition when they agreed to purchase it. Thus, WCE contends it is entitled to summary judgment, as the Buyers cannot prove the element of justifiable reliance. In support of its position, WCE relies on the same three arguments it raised in the trial court. We address each in turn below.
1. Appellants' Waiver of Contingencies
First, WCE contends the Buyers "could not have possibly relied on any misrepresentations or concealed facts about the condition of the [p]roperty by [WCE] because they removed all of their purchase contingencies before opening escrow." By doing so, WCE argues, the Buyers "agreed to proceed with the sale and bind themselves to purchasing the [p]roperty" before it became involved in the transaction; thus, "there is no causal link between [WCE's] purported concealment or failure to disclose and [the Buyers'] decision to purchase the [p]roperty." In support of its argument, WCE relies on copies of Contingency Removal No. 1 and the Purchase Sale Agreement.
As noted above, on March 5, 2019, the day before WCE opened escrow, the Buyers signed Contingency Removal No. 1, by which they "remove[d] any and all buyer contingencies." (Bolded text and capitalization omitted.) In so doing, the Buyers represented they "have (i) completed all [b]uyer [i]nvestigations and review of reports and other applicable information and disclosures; (ii) elected to proceed with the transaction, and (iii) assumed all liability, responsibility, and expense, if any, for [r]epairs, corrections, or for the inability to obtain financing." Paragraph 17.E of the Purchase Sale Agreement, also signed by the Buyers on March 5, 2019, reiterates verbatim the effect of the Buyers' waiver of contingencies.
Moreover, per Paragraph 13 of the Purchase Sale Agreement, the Buyers agreed to purchase the property "'as-is' in its present physical condition." (Capitalization omitted.) By way of Paragraph 13.C, the Purchase Sale Agreement "strongly advised [the Buyers] to conduct investigations of the entire [p]roperty in order to determine its present condition" and warned them that "[p]roperty improvements may not be built according to code, in compliance with current [l]aw, or have had permits issued."
Taken together, the documents submitted by WCE demonstrate the Buyers agreed to purchase the property in its present physical condition. At the time, they had been advised that improvements to the property may have been built without the requisite permits. Nonetheless, the Buyers represented they chose to proceed with the transaction, and to bear all costs of repairs and corrections required on the property, based on their investigation of the property and review of all relevant reports. They made these decisions on March 5, 2019, before WCE opened escrow and became involved in the underlying transaction. Accordingly, WCE has presented prima facie evidence showing that, in deciding to purchase the property, the Buyers did not rely on any misrepresentations on its part regarding the property's compliance with municipal permitting laws. The burden therefore shifted to the Buyers to present evidence creating a triable issue of fact. (Code Civ. Proc., § 437c, subd. (p).)
The Buyers have not met their burden. They do not dispute that they signed the Purchase Sale Agreement and Contingency Waiver No. 1 before escrow opened. Nor have they submitted any evidence showing that their decision to sign those documents, and thereby commit to purchasing the property, was based on any misrepresentations by WCE. Moreover, as the trial court observed, the Buyers' declarations do not state that they would have withdrawn from the transaction or sought to renegotiate the terms of their offer had they learned of the Pre-Sale Report while escrow was open.
In sum, WCE has shown the Buyers agreed to purchase their home as-is, and at the agreed upon price, before it became involved in the transaction. Consequently, the Buyers could not have been influenced by any misrepresentations from WCE regarding the property's unpermitted addition in making their decision. Thus, WCE established the Buyers cannot prove justifiable reliance as required to prevail on their claims. (See Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 855, fn. 2 ["In a fraud case, justifiable reliance is the same as causation, thus, '[a]ctual reliance occurs when a misrepresentation is "'an immediate cause of [a plaintiff's] conduct, which alters his legal relations,"' and when, absent such representation,' the plaintiff '"'would not in all reasonable probability, have entered into the contract or other transaction'"'"].) The Buyers have not shown there is a triable issue of fact regarding their ability to satisfy this essential element. Accordingly, WCE is entitled to summary judgment.
2. Appellants' Imputed Knowledge
Second, WCE argues that the Buyers' claims fail because they had imputed knowledge of the Pre-Sale Report disclosing the unpermitted addition on their property and therefore "cannot establish they were unaware of the true facts or justifiably relied on [WCE's] alleged misrepresentation." We agree.
"It is a fundamental tenet of agency law that a principal is deemed to know what its agent knows while acting within the scope of the agent's authority. [Citations.] This presumption of 'imputed knowledge' applies to what the agent subjectively does know as well as what the agent reasonably should know. [Citations.] This presumption is also 'irrebuttable.' [Citation.] As to what an agent subjectively knows, agents have 'a legal duty to disclose information obtained in the course of the agency and material to the subject matter of the agency, and the agent will be presumed to have fulfilled this duty.'" (Bergstrom v. Zions Bancorporation, N.A. (2022) 78 Cal.App.5th 387, 399 (Bergstrom).) "Thus, '"one who acts through another will be presumed to know all that the agent learns during the transaction, whether it is actually communicated to him or not."'" (van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 573.)
"A real estate broker is a special agent engaged for the limited purpose of negotiating a sale, exchange, or lease of property on behalf of his or her principal. Therefore, not all knowledge obtained by the broker is imputed to the principal. The principal is only charged with notice of matters known to the broker within the course and scope of the broker's employment and that a reasonably competent and diligent broker would disclose to a client." (4 Miller &Starr, Cal. Real Estate (4th ed. 2023), § 10:79, fns. omitted.) "A salesperson is the employee of the employing broker and generally any knowledge obtained by the salesperson during the course and scope of his or her employment is imputed to the broker." (Ibid, fns. omitted.)
The Confirmation of Real Estate Agency Relationships provides that Compass, along with its salespersons Jackson and Miles, represented the Buyers and the Seller as dual agents. On March 19, 2019, in response to his request dated February 21, 2019, Jackson received the Pre-Sale Report from the City of Inglewood via an email sent to his Compass email address. Jackson's request reflects he asked for the report in his capacity as a "Broker or Real Estate Agent" for Compass. As noted above, the Pre-Sale Report states, in relevant part: "4'x8' room addition at the northeast rear of dwelling, built without permit. Must submit plans and obtain permits and inspection to legalize."
This evidence shows Jackson received the Pre-Sale Report in the course and scope of his employment as a salesperson for Compass; as noted above, both Jackson and Compass represented the Buyers and the Seller as dual agents in the underlying transaction. The Pre-Sale Report unambiguously disclosed the property's unpermitted addition, which would require additional effort and expense to legalize and therefore affected the property's value. That information was "material to the subject matter of [Jackson and Compass's] agency." (Bergstrom, supra, 78 Cal.App.5th at p. 399.) Under these circumstances, it is presumed that Jackson and Compass (i.e., the agents) shared the information from the Presale Report with the Buyers (i.e., their principals). (Ibid.) Thus, WCE has sufficiently shown the Buyers had imputed knowledge of the Pre-Sale Report and, consequently, did not rely on any misrepresentations by WCE relating to the unpermitted addition in purchasing the property.
As a result, the burden shifts to the Buyers to present evidence creating a triable issue of fact. (Code Civ. Proc., § 437c, subd. (p).)
Again, the Buyers have not met their burden. In opposing summary judgment, they do not dispute that Jackson and Compass were dual agents who simultaneously represented the Buyers and the Seller in the transaction at issue. Instead, they assert "[i]t would be unjust" to apply the imputed knowledge rule in this case, emphasizing that by forwarding a copy of the PreSale Report to WCE, Jackson tried to disclose it to the Buyers and the Seller in accordance with industry custom and practice. We reject this argument, as Jackson's forwarding of the Pre-Sale Report to WCE is irrelevant to the legal principles and analysis governing the application of the imputed knowledge rule. (See Bergstrom, supra, 78 Cal.App.5th at p. 399.)
In addition, and although not entirely clear, the Buyers appear to contend the imputed knowledge rule should not apply because, "[a]s a matter of custom and practice, Jackson is neither qualified nor required to read the Pre-Sale Report or interpret it for [the Buyers]." While not cited on the page on which it is made, this argument appears to rely on the portion of the Jacobson Declaration opining that Compass and its salespersons "are, as a matter of custom and practice, neither qualified nor required to read [the Pre-Sale Report] [n]or interpret it for the [Buyers]." As noted above, however, the trial court excluded the Jacobson Declaration, and the Buyers have not shown it abused its discretion by doing so.
In sum, WCE has shown the Buyers had imputed knowledge of the unpermitted addition before escrow closed. Thus, it established the Buyers did not reasonably rely on any misrepresentation by WCE about the permit status when deciding to close the transaction. Therefore, WCE met its initial burden as the moving party in a summary judgment motion to "'show[ ] that one or more elements of the plaintiff's cause of action'"-i.e., reliance-"'cannot be established, or that there is a complete defense.'" (Aguilar, supra, 25 Cal.4th at p. 849.) The burden thus shifted to Buyers to present evidence creating a triable issue of fact regarding their ability to satisfy the essential element of justifiable reliance. (See Hall v. Time Inc., supra, 158 Cal.App.4th at p. 855, fn. 2.) They have not done so. Accordingly, WCE is entitled to summary judgment for this added reason.
3. Limited Nature of Escrow Instructions
Finally, WCE also argues the Buyers cannot prove justifiable reliance for the additional reason that the escrow instructions to which they agreed "specifically absolve[ ] [WCE] of any duties or obligations to disclose" the Pre-Sale Report. Again, we agree with WCE's argument.
"'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." (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 711.) Thus, "'[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.'" (Ibid.) "Consequently, . . . no liability attaches to the escrow holder for his failure to do something not required by the terms of the escrow or for a loss incurred while obediently following his escrow instructions." (Lee v. Title Ins. &Trust Co. (1968) 264 Cal.App.2d 160, 162-163.)
For the escrow in this case, the Buyers signed the "Additional Probate Escrow Instructions/General Provisions" (Escrow Instructions) and thereby agreed to the terms contained within. At the outset, Paragraph 1.B of the Escrow Instructions limits WCE's "duties . . . to the safekeeping of funds and documents received by [it] as Escrow Holder and for the disposition of same in accordance with the instructions accepted by [it]." (Underlining in original.)
Paragraph 17, in turn, absolves WCE of responsibility relating to reports and disclosures regarding the property's compliance with municipal ordinances. Specifically, Paragraph 17.A states: "Buyer and Seller acknowledge that there may be civil or municipal disclosure(s), ordinance requirement(s), use regulations, and/or property reports that would affect the transfer of the real property. Buyer and Seller acknowledge that they have been encouraged to seek appropriate advice from legal and/or real estate professionals to ascertain what disclosures, certificates, reports, and/or civil or municipal ordinances, need to be complied with outside of escrow. [WCE] has no responsibility and liability in connection with the validity, regularity or sufficiency of any such disclosures, notices or reports, regarding civil or municipal ordinances." In addition, pursuant to Paragraph 17.C, WCE "is not responsible or to be concerned with the giving of any disclosures except those expressly required by Federal or State law. [WCE] has no responsibility or concern with the effect of (1) zoning ordinances, (2) homeowner's associations, (3) building occupancy restrictions or certificates, or (4) covenants, conditions and restrictions . . . that may pertain to or to affect the subject property or improvements thereto."
This evidence thus demonstrates the Buyers relieved WCE of all duties and responsibilities regarding reports and disclosures pertaining to whether the improvements on the property complied with municipal permitting laws. In so doing, they acknowledged that they had been encouraged to obtain, and therefore depend, on the advice of their legal and real estate professionals-rather than information from WCE-to ensure they received all required disclosures and information of that nature. This evidence establishes that, in agreeing to buy their home, the Buyers did not actually or justifiably rely on misrepresentations or non-disclosure by WCE relating to the PreSale Report or the property's unpermitted addition. As a result, the burden shifts to the Buyers to produce evidence creating a triable issue of fact on this issue. (Code Civ. Proc., § 437c, subd. (p).)
The Buyers contend they satisfied their burden because, notwithstanding the language of Paragraph 17 in the Escrow Instructions, WCE was still required to disclose the Pre-Sale Report to them after receiving it from Jackson while escrow was open. In support of their position, they advance two arguments.
First, the Buyers suggest disclosure by WCE was mandatory because Jackson forwarded the Pre-Sale Report to WCE and, per industry custom and practice, thereby directed WCE to share it with the Buyers and the Seller. We reject this argument as unsupported by evidence. The record shows that, without any accompanying message or instructions, Jackson forwarded the e-mail by which he received the Pre-Sale Report from the City of Inglewood to two WCE representatives. The Buyers, however, do not identify-and we could not locate-any evidence showing that, pursuant to industry custom and practice, WCE would have interpreted Jackson's textless e-mail as an implicit instruction to forward the Pre-Sale Report to the Buyers and the Seller.
Next, the Buyers contend WCE was required to disclose the Pre-Sale Report by law, namely, Chapter 11, Article 8, section 1155 of the Inglewood Code of Ordinances. We reject this argument. The ordinance states, in relevant part: "The report of property record shall be delivered by the owner or authorized representative to the buyer or transferee of the property prior to the consummation of the sale or exchange." (Inglewood Code of Ord., Ch. 11, Art. 8, § 11-55.) Consequently, while the Buyers correctly observe the ordinance mandated disclosure of the PreSale Report, the obligation to do so fell on the Seller and/or its "authorized representative," not WCE. Although WCE, as escrow holder, was an "agent and fiduciary [to] the parties to the escrow[,]" the scope of that agency was "limited to the obligation of [WCE] to carry out the instructions of each of the parties to the escrow." (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co., supra, 27 Cal.4th at p. 711.) And, as discussed above, Paragraph 17 of the Escrow Instructions only required WCE to disclose reports required by federal or state law, and excused it from disclosure obligations arising under municipal ordinances.
Accordingly, WCE's evidence demonstrates the Buyers excused WCE from all obligations concerning the disclosure of the Pre-Sale Report and the information it contained. WCE has therefore shown the Buyers cannot prove they actually or justifiably relied on its alleged misrepresentations or nondisclosure relating to the Pre-Sale Report or the unpermitted addition when purchasing their home.
In summary, because the Buyers failed to produce evidence creating a triable issue of fact on their ability to prevail on their claims, WCE is entitled to summary judgment.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: COLLINS, J., MORI, J.