Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIC429560, Stephen D. Cunnison and Edward D. Webster, Judges.
Sedgwick, Detert, Moran & Arnold, J. Craig Williams and Joseph R. McFaul for Plaintiffs and Appellants.
Morrow & White, Christopher A. White and Tiffany A. Keith for Defendants and Respondents.
McKinster, J.
This is an appeal from the summary judgment entered against plaintiffs and appellants, Tammy Harper, individually and as guardian ad litem for Collin Williams and Zachery Williams, Gary Gladd, and Home Lighting (hereafter referred to collectively as plaintiffs or individually by name) on their operative first amended complaint for damages against numerous defendants, including defendants and respondents NewMark Merrill Companies, LLC, and Jae Chung (hereafter referred to collectively as defendants or individually by name). Plaintiffs’ lawsuit stems from the lease in May 2003 by plaintiffs Gladd and Harper of commercial retail space in the Plaza at Sixth Street in Corona. Bristol Group, Inc. (BGI) owned the Plaza in 2003 when Gladd and Harper entered into the lease. YNS purchased the Plaza from BGI in 2004. At the times pertinent to plaintiffs’ complaint NewMark Merrill Companies, LLC (NewMark) was the management company for the Plaza at Sixth Street and defendant Jae Chung was employed by NewMark as a leasing manager.
Harper and Gladd married each other in December 2003. Harper, also sometimes referred to in the trial court as Tammy Williams, is the mother of the two minor plaintiffs, Collin and Zachery Williams.
FACTUAL AND PROCEDURAL BACKGROUND
According to the pertinent allegations of their first amended complaint, in April 2003 Harper and Gladd were looking for space in which to open a retail home lighting business. Chung showed them suite 102 in the Plaza at Sixth Street. During that visit Harper and Glad noted the carpet in suite 102 was wet in several places and the space had an unpleasant odor. Harper and Gladd told Chung they were interested in leasing the space but not until the source of the wet carpet and odor were identified and fixed. Chung later told plaintiffs “the problem was resolved and the smell would go away.”
Based on Chung’s representation, on May 1, 2003, plaintiffs entered into a 63-month lease of suite 102 from BGI, the lease term to begin on June 4, 2003. While making “their tenant improvements, ” Harper and Gladd learned that the wall between their space and the adjoining pet store (defendant Claws & Paws) “could not be painted because of moisture intrusion.” Harper and Gladd notified NewMark. NewMark told them to fix the wall and NewMark would reimburse them for the cost of repairs. Harper and Gladd made the repairs and opened their business, Home Lighting, at the leased location in August of 2003.
Harper’s sons, Collin and Zachery, spent time after school and on weekends at the lighting store. Both boys developed physical ailments. Zachery developed respiratory problems in late 2003. In March of 2004 a doctor diagnosed Zachery’s ailment as asthma. In July of 2004 Collin “was diagnosed with severe mold allergies and other problems.” Harper believed the boys’ problems were caused by mold and other toxins present in the lighting store. In August 2004, NewMark hired California Steamers Property Services (California Steamers) to inspect both the lighting store and the pet store. The inspection, which included ambient air testing conducted by Bayshore Environmental, revealed “health hazards” the nature of which NewMark refused to disclose to plaintiffs, but which plaintiffs eventually learned included airborne mold and biological toxins related to a koi pond and other unsanitary conditions in the pet store. The California Steamers report, set out in a letter dated August 17, 2004, also concluded that the “primary cause of [the] odor penetrating to the adjacent unit is the unclean and unsanitary conditions around the pond.” When it conducted its inspection on September 2, 2004, Bayshore Environmental discovered a rats’ nest, including its occupants an adult and a juvenile rat, in the common wall between Claws & Paws and Home Lighting. In a letter dated September 10, 2004, Joseph Feres of California Steamers amended his earlier opinion and expressed the view that the “strong odor is probably caused by the mice nesting in the wall in and around the area in question however it is my observation that there is additional odor in the pet store caused by cat urine” as purportedly noted in his August letter.
In late October 2004, Gladd was “hospitalized with aseptic meningitis” and subsequently developed pneumonia “from complications due to the meningitis.” Harper obtained a fact sheet about aseptic meningitis from the United States Center for Disease Control (CDC) and learned that the disease is caused by exposure to mice urine and feces. Plaintiffs’ insurer eventually authorized environmental testing at Home Lighting. Envirocheck, Inc. performed the testing on about October 12, 2004. Samples taken from Home Lighting “revealed remarkably high concentrations of mold, i.e., aspergillus/penicillium and stachybotrys spores (the latter of which is toxic), an abnormal presence of viable airborne paecilomyces, and the presence of mouse (Mns ml) allergen.”
Additional facts developed in the course of defendants’ motions for summary judgment will be recounted below, as pertinent to the issues plaintiffs raise on appeal.
Plaintiffs vacated suite 102 in December 2004 and later filed their complaint seeking damages from BGI, its successor in interest, YNS, NewMark, Chung, and Tina Nashick, the owner of Claws & Paws, under various theories of liability. In the operative first amended complaint, plaintiffs purported to allege causes of action against NewMark and Chung based on fraud, negligent misrepresentation, and intentional interference with prospective economic advantage. NewMark and Chung each moved for summary judgment on all three theories of recovery, claiming among other things that the undisputed evidence showed (1) they lacked the requisite mental states, (2) Gladd signed an estoppel certificate in January 2004 in which Home Lighting stated it did not have any claims against BGI, (3) and their actions did not cause plaintiffs’ physical injuries. The trial court granted their summary judgment motions and after denying plaintiffs’ motion for reconsideration, entered judgment in favor of NewMark and Chung, accordingly. Plaintiffs filed a timely notice of appeal from that judgment.
The original pleading is not included in the record on appeal.
That pleading is included in the record on appeal as an exhibit to defendants’ motion for summary judgment.
DISCUSSION
Plaintiffs contend in this appeal that the trial court erred in granting summary judgment in favor of NewMark and Chung because (1) the estoppel certificate Gladd executed in February 2004 when YNS purchased the property from BGI does not apply to torts committed after that date; (2) the opinion of their expert witness, an industrial hygienist, was sufficient to create a triable issue of material fact regarding whether conditions in the leased space caused the physical ailments Gladd and the two boys suffered; (3) their expert witness was qualified to express an opinion on the issue of causation and the trial court should have taken “sua sponte” judicial notice of his expert qualification; (4) triable issues of fact exist regarding plaintiffs’ fraud claim; and (5) the trial court’s order granting summary judgment in defendants’ favor did not comply with the requirements of Code of Civil Procedure section 437c, subdivision (g). For reasons we now explain we conclude the trial court erred in granting summary judgment in favor of NewMark on plaintiffs’ causes of action for fraud and negligent misrepresentation. Therefore, we will reverse the summary judgment granted in its favor but affirm the summary judgment entered in favor of Chung.
1.
STANDARD OF REVIEW
A trial court must grant a summary judgment motion when the evidence shows 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, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In making this determination, courts view the evidence, including all reasonable inferences supported by that evidence, in the light most favorable to the nonmoving party. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at pp. 849, 850-851, 854-855.) The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849, 850-851.) Despite the shifting burdens of production, the defendant, as the moving party, always bears the ultimate burden of persuasion as to whether summary judgment is warranted. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at p. 850.)
On appeal, we review de novo an order granting summary judgment. (Aguilar, supra, 25 Cal.4th at p. 860; Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972.) In doing so, we view the evidence in the light most favorable to the nonmoving party (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768) and we engage in the same three-step analysis engaged in by the trial court: “First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)
2.
PROCEDURAL ISSUE
Plaintiffs contend that in granting defendants’ summary judgment motions the trial court did not comply with Code of Civil Procedure section 437c, subdivision (g) which states in pertinent part that, “Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.”
The trial court in this case issued a written order that states in pertinent part as follows:
“6. Plaintiffs were not able to establish a sufficient causal relationship between their alleged personal injuries and/or emotional damages in any act or omission by JAE CHUNG.
“7. Plaintiffs failed to establish that JAE CHUNG, an employee of defendant NEWMARK MERRILL, is personally liable for plaintiffs’ economic loss.
“8. Plaintiffs failed to establish a sufficient causal relationship between their alleged personal injuries and/or emotional damages and any act or omission by NEWMARK MERRILL.”
The quoted language is a sufficient statement of reasons for granting summary judgment. Thus the trial court’s order is deficient only in its failure to specifically refer to pertinent evidence. That oversight is harmless if following our independent review we conclude the ruling is correct. In Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, our colleagues in Division One of this court addressed whether failure to state reasons for granting a summary judgment motion was reversible. The court noted the rule that “reversal for a failure to state reasons is not required if the failure was harmless ‘since “‘[i]t is the validity of the ruling which is reviewable and not the reasons therefore.’”’ [Citation.]” (Id. at p. 1146.) “If independent review establishes the validity of the judgment, then the error is harmless. [Citation.] An example of when a failure to state reasons would not be harmless is when the trial court has discretion to ignore a party’s declaration that conflicts with the party’s deposition testimony. [Citation.]” (Ibid.)
If failure to state reasons for granting a summary judgment motion is harmless error under the above noted circumstances, then failure to cite evidence to support the trial court’s reasons must likewise be harmless unless the trial court’s reasoning depends on an exercise of discretion. The trial court’s reasons in this case do not depend on an exercise of discretion, as we explain below. Therefore, we conclude the trial court’s oversight is harmless.
3.
PLAINTIFFS’ FRAUD CLAIM
As noted above, NewMark and Chung moved for summary judgment on plaintiffs’ third cause of action for fraud, eighth cause of action for negligent misrepresentation, and sixteenth cause of action for interference with prospective economic advantage, and the trial court granted that motion. Plaintiffs do not challenge the trial court’s ruling on the cause of action for interference with prospective economic advantage. Therefore we limit our discussion to plaintiffs’ third and eighth causes of action for fraud and negligent misrepresentation, respectively.
“‘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. [Citations.]’ [Citation.]” (Khan v. Shiley Inc. (1990) 217 Cal.App.3d 848, 857-858.)
A. Issues Framed by the Pleadings
Plaintiffs’ fraud cause of action includes two different claims. First, plaintiffs allege defendants made false representations that induced Harper and Gladd to lease suite 102. In addition plaintiffs allege that defendants fraudulently concealed the condition of the leased premises. We first address the fraudulent misrepresentation allegations.
(1.) Fraudulent Misrepresentation
Plaintiffs alleged on information and belief that Chung in his capacity as NewMark’s employee and BGI’s agent, represented that NewMark would deliver the leased premises to plaintiffs free of water leaks and damage; in habitable condition free of mold, mildew, fungi, and moisture contamination; perform maintenance within a reasonable time after being notified of the need for same; remediate toxic mold, mildew, fungi and moisture contamination within a reasonable time after receiving notice of the need for same; maintain the structure in good condition; deliver the property to plaintiffs in a condition to enable plaintiffs to have quiet possession of the property without hindrance or interruption by the landlord or others; and other tenants could not cause obnoxious and foul odors to exist or to disturb plaintiffs, their customers, other tenants, and the public. Plaintiffs alleged that the representations were false, defendants knew they were false, and defendants made the representations with intent that plaintiffs rely on them and agree to lease the property; plaintiffs executed the lease in reasonable reliance on defendants’ representations; and as a result of defendants’ false representations plaintiffs were exposed to mold and other pathogens and, faced with health risks, were forced to “evacuate” the leased property thereby losing their business, all to plaintiffs’ damage.
a. Defendants’ Showing
As previously noted, to prevail on their motion for summary judgment with respect to plaintiffs’ fraudulent misrepresentation claim, defendants had to present evidence that negated one or more elements of that claim or that constituted a defense. Defendants asserted as undisputed material fact No. 26 that on January 22, 2004, in connection with BGI’s sale of the Plaza to YNS, Gladd signed a tenant estoppel certificate, a copy of which defendants included as an exhibit to their summary judgment motion. The estoppel certificate stated in pertinent part that Home Lighting’s lease with BGI “is (a) in full force and effect; (b) free from default by the prior Landlord and/or Tenant, except: N/A; and (c) we have no claims, liens, charges, or credits against the prior Landlord or offsets against rent, except: N/A. Landlord’s obligation to pay for tenant improvements, if any, has been satisfied, except: N/A.”
“An ‘estoppel certificate’ (or ‘offset statement’) is a signed certification of various matters with respect to a lease [citation].” (Greenwald & Asimow, Cal. Practice Guide: Real Property Transactions (The Rutter Group 2006) § 7:292, p. 7-73.) “[T]he facts contained in an estoppel certificate are conclusively presumed to be true, and thus binding on the signatories, even if the certificate erroneously recites the lease terms. [Citation.]” (Id. at § 7:292.4, p. 7-74.) Black’s Law Dictionary defines “estoppel certificate” as “[a] signed statement by a party, such as a tenant or a mortgagee, certifying for the benefit of another party that a certain statement of facts is correct as of the date of the statement, such as that a lease exists, that there are no defaults and that rent is paid to a certain date. Delivery of the statement by the tenant prevents (estops) the tenant from later claiming a different state of facts.” (Black’s Law Dict. (6th ed. 1990) p. 551, col. 2.)
By signing the estoppel certificate on January 22, 2004, Gladd effectively stated that Home Lighting had no claims against BGI as of that date. The estoppel certificate precludes plaintiffs from asserting any claim against BGI based on conduct that occurred before January 22, 2004. Plaintiffs’ allegation that in May 2003 NewMark and Chung falsely represented that BGI would find and fix the source of the water leak and foul odor requires plaintiff to show that BGI did not fix those problems. Plaintiffs are estopped from asserting that claim because such a claim would contradict the estoppel certificate. Because plaintiffs are estopped from asserting that BGI failed to fix the problems, they cannot prevail on their claim that Chung and NewMark made fraudulent representations in that respect. In short, defendants made the showing necessary to establish a defense to plaintiffs’ fraud in the inducement allegation. Therefore, the burden shifted to plaintiffs to present evidence to refute that showing.
b. Plaintiffs’ Showing in Response
In their response to defendants’ statement of undisputed material facts, plaintiffs disputed material fact No. 26, and also asserted that the estoppel certificate was immaterial. To support their claims, plaintiffs cited their response to defendants’ undisputed material fact No. 70, and also cited specific portions of the depositions of Harper and Gladd.
In undisputed material fact No. 70, defendants asserted that “[p]laintiffs claim that Gladd was not authorized to execute the estoppel certificate on behalf of Home Lighting (despite his apparent authority as demonstrated by Gladd providing an application and personal financial information to NewMark, negotiating the Lease on behalf of Home Lighting, signing the Lease and Lease exhibits as the ‘owner’ and ‘controller’ of Home Lighting, maintaining a business card for Home Lighting, and negotiating an expansion of the leased premises with NewMark), and that they were under duress to sign it. Plaintiffs did not take these positions until after this action was filed.” Plaintiffs responded by disputing fact No. 70, asserting that the purported fact is irrelevant, and citing Gladd’s deposition testimony in which he stated in pertinent part that he had not wanted to sign the estoppel certificate and only did so after he received a phone call from NewMark demanding he sign the document and advising him that if he did not “they were going to enforce a section of our lease and that we could be responsible for millions of dollars in damages if we held up the sale of this building.”
We agree with plaintiffs that fact No. 70 is irrelevant. However, as previously discussed, the existence and significance of the estoppel certificate are not irrelevant. Harper stated in the pertinent portion of her deposition testimony that she wanted to make changes to the estoppel certificate but defendant Chung would not let her and instead told her to “get the document signed.” Harper would not sign the estoppel certificate. Plaintiffs also submitted the above quoted testimony from Gladd’s deposition to support their assertion that the validity of the estoppel certificate was a disputed fact. Defendants however submitted all of Gladd’s deposition testimony on the subject of the estoppel certificate. In that testimony Gladd stated in pertinent part that he did not sign the estoppel certificate until “[s]omewhere between one day and two weeks” after NewMark delivered it to him and although he did not understand the effect of the estoppel certificate, he did not discuss the document with anyone other than Harper before signing it.
Plaintiffs’ evidence does not create a triable issue of material fact with respect to the existence, validity, or significance of the estoppel certificate. According to the undisputed evidence, Gladd was not under pressure as disclosed by his testimony that he had somewhere between a day and two weeks to sign the estoppel certificate. Gladd also signed the document without investigating its significance. Because plaintiffs’ evidence does not refute defendants’ showing, we must conclude defendants are entitled to judgment in their favor on all aspects of plaintiffs’ fraud claim that are based on acts that occurred before January 22, 2004, the date Gladd signed the estoppel certificate. As noted above, plaintiffs’ fraudulent misrepresentation claim with respect to signing of the lease is based on acts that occurred in May 2003. Therefore, that issue is barred by the estoppel certificate.
(2.) Fraudulent Concealment
In addition to the allegation that they were fraudulently induced to enter into the lease, plaintiffs also alleged in their fraud cause of action that they were persuaded by false promises and representations by NewMark regarding the source of the offensive odor and the water intrusion to refrain from exercising their purported “rights under the lease to rescind the lease and terminate the tenancy for cause.” In particular plaintiffs alleged that in August 2004 California Steamers inspected Claws & Paws, the pet store that occupied the space next to Home Lighting; California Steamers issued a report to NewMark on about August 17, 2004; and when plaintiffs asked for the results of the California Steamers inspection, NewMark represented to plaintiffs that “there were no results and also informed plaintiffs that the neighboring pet store had cleaned up its act.”
Plaintiffs alleged that NewMark’s representations were false and in fact California Steamers had reported and therefore NewMark knew that the offensive odors “were permeating from the Claws & Paws pet store through the common areas, including common walls and the landlord’s HVAC system, that the moisture intrusion was ongoing and was causing mold exposure, and the conditions were so unsanitary that they were ‘conducive to the [breeding] and transmission of Microbial disease’ as explicitly set out in the California Steamers report, submitted to NewMark... but concealed by NewMark... from Plaintiffs.” Plaintiffs further alleged that they “reasonably relied on [NewMark’s] representation that the Claws & Paws pet store had cleaned up its act... until conditions became untenable and until... Gladd was hospitalized for a condition that is linked... to exposure to pathogens associated with mouse droppings.” Plaintiffs alleged they reasonably relied on defendants’ representations all to plaintiffs’ detriment and, faced with health risks to themselves and their customers as a result of exposure to mold and other pathogens, plaintiffs were “forced to evacuate their business. Had they known in a timely manner that NewMark... had either not determined or corrected the source of the odors and moisture intrusion and had instead continued to conceal the known source, Plaintiffs would have been able to save their business, prevent the total loss of inventory and prevent the illnesses suffered by the Plaintiffs.”
a. Defendants’ Showing
Defendants asserted as fact No. 80 of their statement of undisputed material facts that NewMark’s employee “Eichenbaum testified [in his deposition] that he expressly advised plaintiffs regarding the results of the California Steamers inspection.” Defendants also asserted as undisputed material facts Nos. 60 and 61, that although Gladd was diagnosed with aseptic meningitis, “[n]one of Gladd’s treating physicians communicated the source of his illness.” Defendants also claimed it was undisputed that no physician ever told Harper the cause of the illnesses suffered by Collin and Zachery. Defendants also asserted that from January 2004 to August 2004, plaintiffs did not complain to Patrick Young, NewMark’s property manager, that there was an unpleasant odor in their store. The evidence defendants submitted to support this assertion is the deposition testimony of Patrick Young in which he stated in pertinent part that if during one of his site visits plaintiffs complained about the smell in their store, Young would include the complaint in his site visit report. Young’s site visit report for August 2004 is the only one that includes a note that Harper or Gladd complained about odor.
Young’s site visit reports are included in the record on appeal, but the documents are nearly illegible.
b. Plaintiffs’ Showing in Response
Plaintiffs disputed that Eichenbaum had provided them with the results of the California Steamers inspection and cited their own declarations as support for that claim. Plaintiffs however failed to present any evidence to show that NewMark or any of its employees knew before the California Steamers inspection that toxins from mold or any other source were present in either Home Lighting or Claws & Paws. Without that evidence, plaintiffs cannot as a matter of law, show that defendants committed fraud either by false representation or failure to disclose before August 2004. Because plaintiffs’ evidence does not refute defendants showing with respect to the period before August 2004, plaintiffs also cannot demonstrate that defendants’ fraud caused the physical ailments allegedly suffered by Tammy, Collin, and Zachery because according to the allegations of plaintiffs’ amended complaint those ailments manifested long before August 2004.
Plaintiffs’ evidence conflicts with defendants’ and shows that NewMark did not disclose to plaintiffs that California Steamers’ inspection in August 2004 revealed the presence of mouse allergens and mold. Instead, NewMark through its employee Eichenbaum represented that the pet store had “cleaned up its act.” Plaintiffs also presented the CDC fact sheet that states aseptic meningitis is caused by the lymphocytic choriomeningitis virus (LCMV), a rodent borne disease found in the saliva, urine and feces carried by the common house mouse. Gladd contracted aspectic meningitis in October 2004. That evidence is sufficient to create a triable issue of material fact regarding whether NewMark intentionally misrepresented or concealed the health hazards present in the Home Lighting store after August 2004 and whether Gladd suffered personal injury as a result of those actions.
Plaintiffs appended the CDC publication as Exhibit B to the declaration of their expert witness, Edward J. Faeder, Ph.D., who expressed the opinion that “Gladd’s aseptic meningitis was more probably than not caused by [his] exposure to the LCMV virus at the Home Lighting location.” Defendants objected that Dr. Faeder was not qualified to express an expert opinion, but the trial court did not rule on that objection. Moreover, defendants did not separately object to the CDC publication. For these reasons we will not address plaintiffs’ claim that Faeder was qualified to express an opinion because the issue is moot; the trial court did not rule otherwise.
Plaintiffs’ showing with respect to Chung is that in September 2004 Gladd discussed with Chung the possibility of expanding Home Lighting into the Claws & Paws space if Claws & Paws vacated when its lease expired at the end of 2004. Plaintiffs claimed that during their discussions, Chung did not disclose to Gladd the results of the August 2004 California Steamers and Bayshore Environmental inspections nor did he disclose the fact that NewMark had written letters to the owner of Claws & Paws in August and September advising that “environmental conditions at Claws & Paws presented a health hazard to neighboring tenants.” Plaintiffs’ evidence is not sufficient to impose personal liability on Chung, who at all times acted in his capacity as an employee of NewMark.
As Chung asserted in his summary judgment motion, in order for an agent to be personally liable to a third party, the agent’s conduct must come within one of the three circumstances specified in Civil Code section 2343, which provides: “One who assumes to act as an agent is responsible to third persons as a principal for his acts in the course of his agency, in any of the following cases, and in no others: [¶] 1. When, with his consent, credit is given to him personally in a transaction; [¶] 2. When he enters into a written contract in the name of his principal, without believing, in good faith, that he has authority to do so; or, [¶] 3. When his acts are wrongful in their nature.” The third circumstance is the only one pertinent here and it requires plaintiffs to show that Chung engaged in wrongful acts during his discussions with Gladd to expand Home Lighting into the Claws & Paws space.
Plaintiffs did not present any evidence to show that Chung misrepresented any fact and thus engaged in a wrongful act that would warrant imposition of personal liability. As recounted above, plaintiffs’ evidence at best shows that Chung did not disclose to plaintiffs the results of California Steamer’s inspection of Claws & Paws. Chung had no duty as an individual to disclose information to plaintiffs. His duty derived solely from his status as an employee of NewMark and an agent of the property owner. In short, Chung presented evidence that established a complete defense to plaintiffs’ fraud claim and plaintiffs did not refute that evidence. Therefore, summary judgment was properly entered in favor of Chung and against plaintiffs on the fraud cause of action.
4.
PLAINTIFFS’ NEGLIGENT MISREPRESENTATION CLAIM
Negligent misrepresentation requires proof of: (1) the representation of a material fact by the defendant; (2) the representation was untrue; (3) the defendant made the representation without reasonable ground for believing it to be true; (4) the representation was made with the intent to induce the plaintiff to rely on it; (5) the plaintiff was unaware of the falsity of the representation, but acted in justifiable reliance on its truth; and (6) as a result of such justifiable reliance, the plaintiff was harmed. (See Byrum v. Brand (1990) 219 Cal.App.3d 926, 940.) “The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.)
Plaintiffs’ eighth cause of action based on negligent misrepresentation includes the same factual allegations set out in their fraud claim; it differs from plaintiffs’ fraud cause of action only in the allegation that defendants knew or should have known their representations were false. Because the factual allegations are identical, our analysis of the fraud cause of action is equally pertinent here and compels the same result. We briefly recount the pertinent aspects of that analysis.
As discussed above, the estoppel certificate Gladd signed in January 2004 precludes any claim by plaintiffs based on any alleged representations defendants made before January 2004 to allegedly induce Harper and Gladd to sign the lease with BGI because plaintiffs are estopped from asserting any facts that contradict the estoppel certificate.
Plaintiffs’ evidence creates triable issues of material fact regarding whether after the August 2004 California Steamers inspection and report NewMark, through its employee Eichenbaum, negligently misrepresented that Claws & Paws had “cleaned up its act”; whether plaintiffs did not know the representation was false and justifiably relied on it in deciding not to terminate their tenancy and vacate the premises; and whether Gladd contracted aspectic meningitis as a result of not vacating the premises and instead relying on NewMark’s representation.
Summary judgment was properly entered with respect to Chung because plaintiffs’ evidence does not show that Chung engaged in any wrongful conduct that would support imposition of personal liability on him.
CONCLUSION
Summary adjudication is properly entered in favor of Chung and NewMark and against plaintiffs on plaintiffs’ sixteenth cause of action for intentional interference of prospective economic advantage, and plaintiffs do not challenge the trial court’s ruling on that cause of action.
Summary adjudication is also properly entered in favor of Chung on plaintiffs’ third cause of action for fraud and eighth cause of action for negligent misrepresentation because plaintiffs did not present evidence to refute the validity of the estoppel certificate Gladd signed in January 2004, which effectively precludes plaintiffs from asserting claims that arose before that date, and plaintiffs failed to present evidence to show that Chung committed a wrongful act after January 2004 that would support imposition of personal liability on him.
The trial court properly entered summary judgment in favor of NewMark and against plaintiff Harper individually and in her capacity as guardian ad litem for Collin Williams and Zachery Williams on the third cause of action for fraud and eighth cause of action for negligent misrepresentation because plaintiffs did not present evidence to refute NewMark’s showing that its acts or omissions did not cause the alleged injuries suffered by those plaintiffs.
The trial court erred in entering summary judgment in favor of NewMark and against plaintiff Gladd on the third cause of action for fraud and eighth cause of action for negligent misrepresentation because Gladd presented evidence sufficient to create triable issues of material fact with respect to whether NewMark made representations or omissions of fact after California Steamers conducted its inspection and issued its report in August 2004 and if so whether those representations caused injury to Gladd.
DISPOSITION
The summary judgment entered in favor of NewMark and against Gladd is reversed. The matter is remanded to the trial court with directions to deny Newmark’s summary adjudication motion on the third and eighth causes of action.
The summary judgment entered in favor of Chung is affirmed in all respects.
The parties are to bear their own costs on appeal.
We concur: Ramirez P.J., King J.