Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIC 443724, Thomas H. Cahraman, Judge.
Case, Knowlson, Jordan & Wright, Gary S. Mobley and Amy A. Hoff for Plaintiff and Appellant.
Nevers, Palazzo, Maddux & Packard and Michael S. Wildermuth for Defendants and Respondents
OPINION
Gaut J.
Plaintiff Sun Uk Hong (Hong) appeals from an order sustaining a demurrer without leave to amend and judgment of dismissal in favor of the subsequent purchasers (the Glenwood defendants) of an adjoining parcel of commercial property. Hong purchased a parcel (Parcel 1) in a commercial development in Murrieta, California, from three limited liability companies (the DKN defendants) who held title as tenants in common. One of these companies (one of the Margarita Ville sellers) also owned an interest in an adjoining parcel (Parcel 7). During presale negotiations, a representative of the DKN defendants orally promised to convey an easement for additional parking on Parcel 7. Hong needed the additional parking spaces to obtain the necessary permits for construction of a large commercial structure on Parcel 1.
No easement was conveyed and that agreement was not written, although the purchase agreement relating to Parcel 1 was subsequently written and executed. Approximately six months after escrow closed on the purchase of Parcel 1, the Margarita Ville sellers, which held title to Parcel 7, sold Parcel 7 to the Glenwood defendants. Unable to enforce the oral promise of the parking easement, Hong sued. The Glenwood defendants demurred to the causes of action of the second amended complaint seeking specific performance of the oral agreement to convey the easement and to quiet title. The demurrer was sustained without leave to amend and the action was dismissed as to the Glenwood defendants.
Hong appeals, contending that the oral agreement on behalf of the DKN defendants to convey an easement for additional parking spaces in the adjoining parcel created an equitable interest permitting specific performance of the oral agreement against the Glenwood defendants, who purchased Parcel 7 six months after Hong acquired title to Parcel 1. We affirm.
At oral argument, Hong asserted we had misstated the facts by referring to the oral agreement by the “DKN defendants” to convey the easement. However, in paragraph 13 of the first cause of action, Hong alleges that the DKN Defendants entered into the agreement for the sale of the property to Woo (who later assigned his rights to Hong). Paragraph 15 at pages 33-34 of the appellant’s appendix, alleges that “At the same time, the DKN Defendants concealed and failed to disclose to Plaintiff and/or Woo that, in order to build a 13,000 square foot building on the Subject Property, Defendants would need to allocate, assign or transfer approximately 52 parking spaces from Parcel 7 of the Shopping Center to Parcel 1 and consent to the construction, that Parcel 7 of the Shopping Center was owned by a related entity, Margarita Ville, and that said Defendants had no intention of assigning the necessary parking spaces for the project to be approved by the City.” Further, the amended complaint alleges in the second cause of action, at page 37 of the appellant’s appendix, paragraph 34: “Thereafter, the DKN Defendants further breached the Agreement by failing and refusing, despite demand, to allocate, assign or transfer approximately 52 parking spaces from Parcel 7 of the Shopping Center to Parcel 1 necessary to allow the City to accept and process Plaintiff’s application to build a 13,000 square foot building on the Subject Property.” Finally, at pages 3 and 4 of appellant’s opening brief, Hong refers to representations by Dendy “on behalf of the DKN Defendants” relating to the assurance that Hong could construct a 13,000 square foot building.
1. Background
Because this appeal is taken from a dismissal entered after an order sustaining a demurrer without leave to amend, we take the facts from the second amended complaint, filed on August 21, 2006.
Defendants DKN Holdings, LLC, CDFT LP, Margarita Ville, LLC, and Margarita Ville Contribution, LLC (the DKN defendants) owned an undeveloped parcel of commercial property in the Margarita Ville Shopping Center in Murrieta, California, referred to as Parcel 1. Defendants Margarita Ville LLC and Margarita Ville Contribution (the Margarita Ville sellers) were the owners of an adjoining parcel of the same shopping center.
In November 2004, an individual named Cliff Kun Woo initiated negotiations with Bill Dendy, a general partner of CDFT, and managing member of the limited liability companies comprising the DKN defendants, to purchase Parcel 1. One of the limited liability companies managed by Dendy was a title holder of Parcel 7 at the time of the sale of Parcel 1. Dendy was aware Woo (or his successor) intended to build a 13,000 square foot commercial building on Parcel 1, and that additional parking spaces were needed from one of the adjoining parcels in order to acquire the necessary permits from the City of Murrieta. Dendy orally represented that such a building could be constructed on the parcel, and orally represented that the owners of Parcel 7 would grant a parking easement for the necessary number of additional spaces to comply with city building requirements. In return, the owners of Parcel 7 needed an easement for ingress and egress, to which Woo (or his successor in interest) agreed.
Based on the negotiations and representations, Woo entered into a written purchase agreement for Parcel 1, for which he paid $1,197,900. Woo assigned his rights to Hong prior to the close of escrow. Escrow closed on June 21, 2005, and grant deeds were recorded June 24, 2005, conveying title for Parcel 1 to Hong. Prior to the close of escrow, the DKN defendants recorded an easement for ingress and egress for the benefit of Parcel 7, but the owners of Parcel 7 did not convey a parking easement for parcel 1.
On January 20, 2006, six months after the sale of Parcel 1, Parcel 7 was sold to Margarita Ville Limited Partnership, Murrieta Funding Limited Partnership, Murrieta Preschool Limited Partnership, and Glenwood Banning Limited Partnership, collectively referred to as the Glenwood defendants. The sellers of this parcel were Margarita Ville LLC and Margarita Ville Contribution (referred to as the Margarita Ville Seller defendants). Hong notified the Glenwood defendants of his claims to the parking easement, but no easement was conveyed.
Hong filed suit against the sellers of Parcel 1 (the DKN defendants), the sellers of Parcel 7 (the Margarita Ville Seller defendants) and the purchasers of Parcel 7 (the Glenwood defendants). The second amended complaint asserted claims for fraud against the DKN defendants, breach of oral contract against the Margarita Ville Seller defendants, specific performance against the Glenwood defendants, and quiet title against all defendants. The Glenwood defendants demurred to the second amended complaint. On October 31, 2006, the demurrer to the second amended complaint was sustained without leave to amend, and judgment of dismissal as to the Glenwood defendants was entered.
Hong appeals. He contends the Glenwood defendants, as subsequent purchasers of Parcel 7, took title with actual or constructive notice of his claim against the Margarita Ville sellers, and can be joined as defendants in an action for specific performance of an oral agreement to provide an easement for additional parking spaces. We disagree.
2. Discussion
A. Standard of Review and General Legal Principles Relating to Review of Rulings on Demurrers.
On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. First, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Next, we treat the demurrer as admitting all material facts properly pleaded. Then we determine whether the complaint states facts sufficient to constitute a cause of action. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865, citing Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We do not, however, assume the truth of contentions, deductions, or conclusions of law. (Lazy Acres Market, Inc. v. Tseng (2007) 152 Cal.App.4th 1431, 1435.) If a complaint is insufficient on any ground specified in a demurrer, the order sustaining the demurrer must be upheld even though the particular ground upon which the court sustained it may be untenable. (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 426.)
When a demurrer is sustained without leave to amend, we must further decide whether there is a reasonable possibility that the defect can be cured by amendment. If it can, the trial court has abused its discretion and we reverse in that circumstance. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126.) The burden of proving such reasonable possibility rests squarely on the plaintiff. (Ibid.)
B. Analysis: Absent Any Contract Between Hong and the Glenwood Defendants, Specific Performance is Not a Proper Remedy.
The main thrust of plaintiff’s argument is that he is entitled to specific performance of an unexecuted oral agreement between himself and defendant’s predecessor in interest. We disagree.
The execution of a contract in writing supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument. (Civ. Code, § 1625.) If the agreement is construed as a wholly separate oral agreement between Hong (or his predecessor) and third parties who were not parties to the written agreement (as appellant asserted at oral argument), then the agreement violates the statute of frauds. (Civ. Code, § 1624, subd. (a)(3).) An agreement to convey an easement is an agreement to convey an interest in land which requires a writing.
Although Hong asserts there was an oral agreement to convey the easement, he did not assert the existence of any agreement between his predecessor in interest and the owners of Parcel 7. Since the DKN Defendants did not own Parcel 7, and did not represent that they owned that parcel, Hong cannot assert he reasonably relied on Dendy’s or DKN Defendant’s authority to convey the easement for the parking spaces. Nor did he pay for an easement relating to Parcel 7. In other words, while the assertion that an easement may be created by an oral agreement is theoretically correct, Hong has not established the existence of an enforceable oral agreement.
Thus, the holdings of Banning v. Kreiter (1908) 153 Cal. 33, and Laughton v. McDonald (1923) 61 Cal.App. 678, do not aid Hong’s position. In Banning, the seller’s agent admitted he told one of the buyers that the buyer would have the benefit of the alley (the easement in question), and there was evidence that the buyer paid an additional sum for that benefit. There was extrinsic evidence of an oral argument in that case which is absent here. In Laughton, the verbal agreement involved a sale of real estate to McDonald on which McDonald made improvements 20 years prior to the purchase of the same parcel by the appellant Laughton. The court found in favor of McDonald, holding that because the prior agreement was fully performed, the statute of frauds did not apply. (Laughton, supra, at p. 681.) In both cases cited by Hong, the party asserting the right to the easement established the existence of an oral agreement with the party from whom the interest in realty was to be acquired. Hong did not allege similar facts so these cases are unhelpful.
Additionally, Hong asserts his right to the easement is established by way of the parol evidence rule. However, the parol evidence rule relates to the use of extrinsic evidence to explain or supplement the terms of an existing written instrument. (Code Civ. Proc., § 1856.) It is not a substitute for the statute of frauds. Under this substantive rule, if a writing reflects only a partial integration of the understanding of the parties to a note or written agreement, parol evidence of a contemporaneous oral agreement is admissible to show the true intent of the parties to the note or other writing. (Bank of Beverly Hills v. Catain (1982) 128 Cal.App.3d 28, 34.)
The parol evidence rule thus presupposes that the extrinsic evidence relates to the provisions of a written agreement between the same parties. Yet Hong did not allege he believed or had reason to believe that the DKN Defendants owned Parcel 7, the parcel to be burdened by the easement. Only the Margarita Ville Defendants, or their predecessors in interest, could have agreed to convey an easement burdening Parcel 7, either orally or in writing.
This leaves us with the written agreement between the DKN Defendants and Hong’s predecessor in interest for the purchase of Parcel 1, which was an integrated written agreement. Extrinsic evidence of oral promises cannot be used to vary the obligations of the actual parties to a written agreement, we do not see how such oral assurances, not reflected in the superseding contract, can be binding on one who was not a party to that contract. An essential element of any contract is consent, which must be mutual. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810 [settlement of license agreement litigation was unenforceable against parties who did not expressly consent to the material terms of the settlement].)
The only “contract” involved in this action was the written commercial real estate sales contract between Hong and the DKN defendants. Although not incorporated into the pleading, Hong’s complaint establishes the Glenwood defendants were not parties to that written contract, which superseded any oral negotiations or promises made between himself and Dendy, the representative of the DKN defendants. Additionally, the second amended complaint does not allege that the Glenwood defendants consented to the terms of the oral promises made by Dendy as representative of the DKN defendants, or made any promises themselves. Absent their express consent, there is no contract to be specifically enforced against the Glenwood defendants. (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at pp. 810, 811.)
Plaintiff argues at length that an oral agreement to convey an easement is valid and enforceable against subsequent purchasers of the parcel to be burdened by the easement. As we have discussed above, the allegation of a written sales contract for the purchase of Parcel 1, defeats this argument. Further, we do not need to decide whether the Glenwood defendants had actual or constructive knowledge of the oral assurances given to Hong by the DKN defendants because those oral representations preceded the written sales agreement, which, by operation of law, superseded all oral agreements.
Even if Dendy, representing the DKN defendants during the sale of Parcel 1, was also an officer or agent of one of the Margarita Ville seller defendants, his oral promises to plaintiff are not binding on the Glenwood defendants because (a) the Glenwood defendants were not parties to the agreement Dendy negotiated, and (b) the superseding written contract was silent on the subject of the parking easement.
There is no enforceable agreement for conveyance of a parking easement and plaintiff is not entitled to specific performance.
3. Disposition
The judgment is affirmed in its entirety. Plaintiffs to bear the costs on appeal.
We concur: Hollenhorst Acting P. J. McKinster J.