Opinion
B229148
12-21-2011
JOHN KERRIGAN, Plaintiff and Appellant, v. COLDWELL BANKER RESIDENTIAL REAL ESTATE COMPANY, et al., Defendants and Respondents.
John Kerrigan, in pro. per., for Plaintiff and Appellant. Halling + Sokol and Chris W. Halling for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. SC097986
APPEAL from a judgment of the Superior Court for Los Angeles County, Richard A. Stone, Judge. Affirmed.
John Kerrigan, in pro. per., for Plaintiff and Appellant.
Halling + Sokol and Chris W. Halling for Defendants and Respondents.
Plaintiff John Kerrigan appeals from a summary judgment in favor of defendants Coldwell Banker Residential Real Estate Company and Neal Baddin on his complaint alleging intentional interference claims. Kerrigan, a real estate agent, alleged that Coldwell and Baddin (a real estate agent working for Coldwell) intentionally interfered with Kerrigan's relationship with a client in the purchase of a large estate property, resulting in the loss of his commission on the sale. In granting summary judgment, the trial court found, among other things, that Kerrigan was not a party to any valid contract with any party related to the property at issue, and that Baddin was told when he was contacted and retained by the client and his attorney that the client had decided not to work with Kerrigan in trying to purchase the property. The undisputed evidence supports these findings. Accordingly, we affirm the judgment.
BACKGROUND
This case involves the purchase, in April 2006, of a large estate property on Sweetwater Mesa Road in Malibu. The purchaser was Sweetwater Malibu, LLC, an affiliate of Teodoro N. Obiang. The listing broker for the property, which sold for $30,750,000, was Hilton & Hyland, and the selling broker (i.e., the broker representing the buyer) was Coldwell. Coldwell's commission was $615,000. The following facts are not disputed.
Obiang was introduced to the Sweetwater property in June 2003, by Kerrigan. Kerrigan met Obiang in 1999, when Obiang told him he wanted to purchase a large estate property, and asked Kerrigan to represent him. According to Kerrigan, he and Obiang entered into an oral contract that Kerrigan would be Obiang's agent representing him on any property Kerrigan found for Obiang that Obiang decided to purchase; in reliance on that agreement, Kerrigan showed Obiang 28 large estate properties between June 2001 and January 2006, including the Sweetwater property.
On November 3, 2003, Kerrigan submitted an offer, on Obiang's behalf, to purchase the Sweetwater property for $21 million. That offer was not accepted. He submitted another offer, signed by Obiang, on January 29, 2004, for $24 million. He received a counter offer from the seller on February 3, 2004, and submitted a counter offer to that counter offer on February 5, raising Obiang's offer to $27 million. The seller submitted another counter offer, for $33 million, which Obiang did not accept.
The copy of this offer in the record is not signed by Obiang; Kerrigan asserts in his declaration filed in opposition to the motion for summary judgment that Obiang signed it before Kerrigan submitted the offer to the seller's agent.
In March 2004, Obiang asked Kerrigan to help him sell a home he owned on Antelo Road in Los Angeles. In late August 2004, Obiang accepted an offer on that house, and escrow opened in early September 2004. Kerrigan then worked with Obiang to find lease properties for him to live in while they looked at properties to purchase. Around that same time -- on August 27, 2004 -- Kerrigan, on Obiang's behalf, submitted a new offer on the Sweetwater property, for $28 million. On September 1, Kerrigan received a counter offer for $32 million, which Obiang did not accept.
The copy of this offer in the record is not signed by Obiang, although Kerrigan asserts that Obiang signed it before it was submitted to the seller's agent.
During the listing and sale of the Antelo property, Obiang became dissatisfied with the way Kerrigan handled the transaction, and decided to use another broker in his search for other properties in Southern California. In October 2004, Obiang's attorney, Michael Berger, referred Coldwell and Baddin to Obiang. Berger had called Baddin sometime in September 2004, and told him that Obiang had been working with Kerrigan, but was dissatisfied with Kerrigan and no longer wanted to work with him. Berger arranged for a meeting between Baddin and Obiang, to see if they would be a good fit to work together. They met for the first time on October 19, 2004, and Obiang asked Baddin how he would go about negotiating a deal on the Sweetwater property. They met again, this time with Berger in attendance, on November 1, 2004. During that meeting, Baddin asked Obiang and Berger why Kerrigan was not representing Obiang in purchasing properties. Obiang told him that he was unhappy with the way Kerrigan handled the sale of the Antelo property transaction and therefore did not want to use Kerrigan. Obiang told Baddin that he liked Baddin and his ideas, and wanted Baddin to represent him. Obiang also told him that even if Baddin did not represent him, he would not use Kerrigan for the Sweetwater property. At that meeting, Obiang's company, Beautiful Vision, Inc., entered into a written agreement with Coldwell, engaging Coldwell and Baddin as its exclusive agents to locate potential property on a "house by house basis," starting with the Sweetwater property; Berger signed the agreement as president of Beautiful Vision, Inc.
Over the next 15 months, Baddin showed Obiang many properties in Beverly Park, Bel Air, Malibu, and Beverly Hills, while also preparing and negotiating several offers and counter offers for the Sweetwater property. On September 18, 2005 -- almost a year after Obiang's company first entered into an exclusive agreement with Baddin and Coldwell to represent him in purchasing the Sweetwater property -- Baddin and Obiang entered into a written agreement that Baddin would share equally with Obiang the commission due to Coldwell on any successful purchase of the Sweetwater property; they entered into a similar agreement in December 2005, although they agreed that Obiang would receive his portion as a credit through escrow.
In their declarations filed in support of defendants' motion for summary judgment, Baddin, Berger, and Obiang stated that the agreement to split the commission was first made in December 2005. Defendants concede the mistake in dates.
An agreement was reached for the purchase of the Sweetwater property by Obiang's affiliate on January 31, 2006. The sale closed on April 27, 2006. On October 19, 2006, Kerrigan and the broker he then worked for filed an arbitration claim with the Beverly Hills/Greater Los Angeles Association of Realtors against Coldwell, Baddin, and the listing broker and agent for the Sweetwater property. Kerrigan alleged that Baddin offered Obiang a "kickback" of 50 percent of the selling commission if Obiang agreed to leave Kerrigan and allow Baddin to represent him. He also alleged that Baddin and the listing agent conspired to conceal the circumstances of the sale in the Multiple Listing Service (MLS) system in an attempt to avoid a commission dispute between Baddin and Kerrigan. He sought the full two percent commission on the sale of the property, which he calculated to be $620,000.
The broker that Kerrigan worked for filed for bankruptcy in January 2008, before the arbitration was completed; the arbitration was listed as an account receivable in the broker's schedule of personal property. In April 2008, the bankruptcy trustee entered into an agreement to sell the broker's claims in the arbitration to Coldwell and the listing broker for the Sweetwater property. After the Bankruptcy Court authorized and confirmed the sale, Coldwell and the listing broker, as holders of the bankrupt broker's rights, dismissed with prejudice the broker's arbitration claims. The arbitrator determined that Kerrigan could not continue prosecuting the arbitration on his own behalf, because the complaining broker was a necessary party, and the Beverly Hills/Greater Los Angeles Association of Realtors did not have jurisdiction to hear Kerrigan's claims.
In the meantime, Kerrigan filed the instant action in April 2008. In the operative second amended complaint, Kerrigan alleges claims against Coldwell and Baddin for intentional interference with prospective economic advantage and intentional interference with contract. In the first cause of action, Kerrigan alleges that he had an economic relationship with Obiang, with a probability of future economic benefit to him, and that Coldwell and Baddin knew about the relationship and intentionally acted to disrupt the relationship through actions that violated industry, trade, or professional rules or standards. In the second cause of action, Kerrigan alleges that he had an agreement with Obiang, confirmed in writing, whereby Obiang agreed to use Kerrigan's services as an agent on the purchase of the Sweetwater property and Kerrigan agreed to provide those services, and that Coldwell and Baddin knew of the agreement and disrupted the agreement by offering a kickback to Obiang to breach his agreement with Obiang. Kerrigan sought compensatory damages of $620,000.
He also alleges the same claims against the listing broker and agent, who are not parties to this appeal.
Coldwell and Baddin moved for summary judgment. They argued that Kerrigan's claims fail because the undisputed evidence shows that (1) there was no valid contract between Kerrigan and Obiang; (2) neither Coldwell nor Baddin knew about any relationship between Kerrigan and Obiang, contractual or otherwise, until after Obiang had decided to terminate his relationship with Kerrigan; (3) neither Coldwell nor Baddin committed any act designed to interfere with Kerrigan's relationship with Obiang or to induce Obiang to breach any purported contract, because Obiang had decided to terminate his relationship with Kerrigan before Baddin met Obiang; (4) Kerrigan could not demonstrate any damages proximately caused by Coldwell or Baddin because Obiang had decided not use Kerrigan in the purchase of the Sweetwater property before Baddin met with Obiang; (5) Kerrigan's claims are barred as a matter of law because only licensed real estate brokers may bring an action to recover a commission, and Kerrigan, a real estate salesman, is not a licensed broker.
The evidence Coldwell and Baddin submitted in support of their summary judgment motion included declarations from Baddin, Obiang, and Berger describing the circumstances surrounding Obiang's retention of Coldwell and Baddin to represent him in the purchase of the Sweetwater property, and excerpts from Kerrigan's deposition testimony regarding his purported agreement with Obiang.
Obiang stated in his declaration that, before Berger referred Coldwell to him in or about October 2004, he became dissatisfied with the way Kerrigan handled the sale of his Antelo property and decided he no longer wanted to use Kerrigan in his purchase of real property in Southern California. He declared that in his first meetings with Baddin, Baddin asked him why Kerrigan was no longer representing him, and he told Baddin he was unhappy with the way Kerrigan handled the sale of his Antelo property and therefore he did not want to use him. He also stated that he authorized Berger, as president of his company Beautiful Vision, Inc., to sign an exclusive retainer agreement with Coldwell with respect to the Sweetwater property in November 2004, and authorized Coldwell to present on his behalf four signed offers to purchase the Sweetwater property over a period of 13 months, the last of which was accepted by the seller on January 6, 2006. He stated that he asked Baddin for a commission credit in December 2005 if he purchased the Sweetwater property, and that Baddin eventually agreed to give him a 50 percent credit. Finally, he declared that he was adamant that he did not want to use Kerrigan in his purchase of the Sweetwater property, and that, if he had not been represented by Coldwell, he would have been represented by a different broker.
See footnote 3.
Berger's declaration offered support for Obiang's account of the circumstances surrounding Obiang's retention of Coldwell and Baddin. He stated that Obiang told him of his dissatisfaction with Kerrigan and his unwillingness to be represented by Kerrigan in further transactions, and that he (Berger) then referred Coldwell and Baddin to Obiang. He confirmed that Baddin asked him and Obiang why Kerrigan was not representing Obiang, and that Obiang told Baddin that he was unhappy with the way Kerrigan handled the sale of Obiang's Antelo property and no longer wanted to use Kerrigan. He also confirmed that Obiang authorized him, acting as president of Beautiful Vision, Inc., to sign an exclusive retainer agreement with Coldwell with respect to the Sweetwater property, and that in December 2005, Obiang asked Baddin for a commission credit if Obiang purchased the Sweetwater property. Finally, he declared that Obiang was adamant in his discussions with him, before he referred Coldwell to Obiang, that he (Obiang) did not want to use Kerrigan in his purchase of the Sweetwater property.
In his declaration, Baddin stated that he knew nothing about Obiang or the Sweetwater property before Berger called him in September 2004, and that he first met Obiang on October 19, 2004. He also stated that, during his next meeting with Obiang, on November 1, 2004, Obiang told him that he was unhappy with Kerrigan's handling of the listing and sale of his Antelo property, and that he (Obiang) was discontinuing his use of Kerrigan regardless of whether Baddin agreed to represent Obiang. Baddin declared that he never solicited or induced Obiang, Berger, or anyone else to stop dealing with Kerrigan. With regard to his sharing of his commission with Obiang, Baddin stated that he received a request from Obiang in December 2005 to credit him with half of the Coldwell commission if and when the sale of the property closed. He stated that Obiang received that credit through escrow when the property closed, and that he (Baddin) also gave Berger $60,000 in appreciation of Berger's referral of Obiang to him.
See footnote 3.
The excerpts of Kerrigan's deposition testimony that Coldwell and Baddin submitted in support of their motion included testimony in which Kerrigan conceded that he had no written agreement with Obiang saying that Kerrigan was Obiang's agent with respect to the Sweetwater property, other than a form written offer that Kerrigan submitted to the seller of the property. That form included a paragraph -- titled "CONFIRMATION" -- confirming the agency relationships for the transaction. It stated that Bankers Realty Inc. (the broker for whom Kerrigan worked) was the agent of "the Buyer exclusively" for that transaction. The form also stated that the offer would be deemed revoked unless it was signed by the seller and a copy of the signed offer was received by Kerrigan by 9:00 p.m. on the third calendar day after the offer was signed by the buyer (i.e., Obiang). The seller did not accept this form offer, which was signed by Obiang on January 30, 2004, but instead made a counter offer. Obiang, through Kerrigan, then made a written counter offer to the seller on February 5, 2004, which would be deemed revoked if Kerrigan did not receive a copy of the counter offer, signed by the seller, by 5:00 p.m. on the third calendar day after the counter offer was made. The seller did not accept the counter offer.
Although there are several form offers in the record, only one is signed by Obiang.
The form actually states that the offer is revoked unless the signed copy is received by 5:00 p.m. on the third day. However, the form provides a box that would change the revocation date or time if checked, and a line to write in a different date and/or time. On the form at issue, the box is checked, "9:00" is written in the space to record a different time, and the "PM" box is checked.
Kerrigan argued in opposition to the summary judgment motion that there were two enforceable contracts to which he was a party, with which Coldwell and Baddin interfered. First, he contended that he had a valid oral agreement with Obiang that Kerrigan would be Obiang's agent representing him on any property Kerrigan found for him, and that that agreement was confirmed in writing by way of the form offer Obiang signed on January 30, 2004. Second, he contended he was a party to the listing agreement between the seller and the listing broker, because that agreement required the listing broker to pay a two percent commission to a "cooperating broker" if the property was sold. Kerrigan also argued there was no credible evidence that Obiang had decided he did not want Kerrigan to represent him because (1) Baddin's declaration that Berger told him in September 2004 that Kerrigan had mishandled the sale of Obiang's Antelo property was false because the events at issue did not occur until mid-October; and (2) Obiang continued to work with Kerrigan after September 2004. On the other hand, Kerrigan argued there was credible evidence that Obiang was induced to terminate Kerrigan's representation of him for the Sweetwater property by Baddin's agreement to "kickback" half of Baddin's commission to Obiang. Finally, Kerrigan argued that his claims are not barred as a matter of law because they are tort claims for interference rather than claims for payment of a commission.
In support of his opposition, Kerrigan submitted evidence, including his declaration, to show that the events that purportedly drove Obiang to decide not to use Kerrigan took place in October 2004, and that Obiang continued to work with Kerrigan after September 2004 (which was when Baddin said he was contacted by Berger). Kerrigan also submitted a copy of a letter from Baddin to Obiang, dated September 18, 2005, confirming their agreement that Baddin and Obiang would share equally Baddin's commission on the Sweetwater property if Obiang purchased it.
The trial court granted summary judgment on three grounds. First, the court found that Kerrigan was not a party to an enforceable contract that would have entitled him to a commission on the subsequent sale of the Sweetwater property, and Coldwell and Baddin did not engage in any conduct that would have interfered in any purported contract. Second, the court found that Kerrigan did not have a reasonable probability of realizing an economic advantage when his relationship with Obiang was terminated, and Coldwell and Baddin did nothing wrongful when they were hired by Obiang, nor did they knowingly interfere in Kerrigan's relationship with Obiang. Finally, the court found that Kerrigan's claims were barred as a matter of law because he was not a licensed broker and had no written agreement with Obiang that would entitle him to compensation upon any sale of the Sweetwater property after August 2004. Kerrigan timely filed a notice of appeal from the judgment entered in favor of Coldwell and Baddin.
DISCUSSION
In his opening brief on appeal, Kerrigan attempts to show numerous "facts" that purportedly contradict the trial court's findings in support of the summary judgment. We need not address most of them -- or Coldwell's and Baddin's assertion that Kerrigan's claims are barred as a matter of law -- because the undisputed evidence supports two critical findings made by the trial court that entitle Coldwell and Baddin to judgment as a matter of law. A. Standard of Review
We begin with the standard for granting and reviewing summary judgments. A defendant moving for summary judgment must present evidence that one or more elements of the plaintiff's claim cannot be established or that there is a complete defense to the claim. If the defendant meets that burden of production, the burden shifts to plaintiff to show that a triable issue of material fact exists as to that claim or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The plaintiff shows that a triable issue of material fact exists by pointing to evidence that would allow a reasonable trier of fact to find that fact in favor of the plaintiff. (Ibid.) If the plaintiff fails to do so, the defendant is entitled to judgment as a matter of law. On appeal from a summary judgment, we make "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
In this case, Kerrigan alleged claims for intentional interference with contract and intentional interference with prospective economic advantage. The elements of intentional interference with contract are: "(1) a valid contract between the plaintiff and a third party; (2) defendants' knowledge of the contract; (3) defendants' intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage." (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1239.) The elements of intentional interference with prospective economic advantage are: "(1) an economic relationship between the plaintiff and a third party, with the probability of future economic benefit to the plaintiff; (2) defendant's knowledge of the relationship; (3) an intentional act by the defendant, designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the defendant's wrongful act, including an intentional act by the defendant that is designed to disrupt the relationship between the plaintiff and a third party. [Citation.] The plaintiff must also prove that the interference was wrongful, independent of its interfering character. [Citation.]" (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 944.) For our purposes, we need address only the first element of the interference with contract claim and the second element of the interference with prospective economic advantage claim. B. Interference With Contract Cause of Action
The first element of intentional interference with contract requires Kerrigan to show there was a valid contract between himself and Obiang. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., supra, 106 Cal.App.4th at p. 1239.) Coldwell and Baddin argued in support of their summary judgment motion that Kerrigan cannot establish this element because the contract Kerrigan alleges was interfered with -- an alleged oral agreement that Kerrigan would be Obiang's agent representing him on any property he found for Obiang that Obiang decided to purchase -- is not a valid contract under Civil Code section 1624 (hereafter, section 1624).
Section 1624 provides that "[a]n agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate, . . . or find a purchaser or seller of real estate . . . for compensation or a commission" is invalid unless it, "or some note or memorandum thereof, [is] in writing and subscribed by the party to be charged or by the party's agent." (§ 1624, subd. (a)(4).) Coldwell and Baddin presented evidence, undisputed by Kerrigan, that he did not have a written agreement with Obiang to be his exclusive agent for the purchase of real property.
Kerrigan argues, however, that his alleged oral agreement was memorialized in the written offers on the Sweetwater property that he made on Obiang's behalf, which he submitted in opposition to the summary judgment motion. This evidence is insufficient to raise a triable issue of fact. First, as noted, only one of the offers in the record was signed by Obiang. Second, although that offer, like the other unsigned offers, stated that the broker for whom Kerrigan worked was the agent for "the Buyer exclusively," that statement must be read in context. It is found in a paragraph that confirms the relationships between the agents/brokers and the buyer and seller for that specific transaction; its purpose is to make clear whether the named agent/broker is acting as agent for the seller, for the buyer, or for both the seller and buyer. Thus, to the extent the written offer memorialized an agreement between Kerrigan and Obiang, it was an agreement that Kerrigan (or the broker for whom he worked) was Obiang's agent for the purpose of that offer. Finally, even if the written offer memorialized an agreement that Kerrigan would act as Obiang's agent, it related only to that particular offer, which expired three days after Obiang signed it. Thus, the trial court correctly found that no valid contract existed, and that Coldwell and Baddin were entitled to judgment on Kerrigan's cause of action for intentional interference with contract. C. Interference With Prospective Economic Advantage Cause of Action
Kerrigan also argues on appeal that there were two other contracts with which Coldwell and Baddin interfered -- a "unilateral contract" from the listing broker that offered compensation to participating cooperative brokers who were members of the MLS system used by the listing broker, and the residential listing agreement between the seller and the listing broker, in which the listing broker agreed to compensate cooperating brokers who participated in the MLS system. Neither of these contracts was alleged in the second amended complaint, and therefore neither can be asserted to defeat the summary judgment motion. (See, e.g., Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4 ["A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers"].) In any event, the first purported contract was not signed by the party to be charged and therefore is invalid under section 1624, and the second purported contract does not satisfy the first element of the interference with contract claim because Kerrigan is not a party to the contract.
The form offer included an expiration clause that stated the offer would expire at 5:00 p.m. on the third day after the Buyer signed it, unless a box was checked, indicating it would expire at a different date and time. On the form offer at issue here, the box was checked but no date was inserted; there was only a time inserted (9:00 p.m.). Kerrigan argued that, because the box was checked without any date inserted, the offer did not expire. Such a reading of the offer would be unreasonable in light of the fact that a time was inserted. The only reasonable interpretation is that the offer expired at 9:00 p.m., rather than at 5:00 p.m., on the third day after Obiang signed it.
The first two elements of intentional interference with prospective economic advantage require Kerrigan to show he had an economic relation with Obiang with the probability of future economic benefit, and that Coldwell and Baddin knew about that relationship. (Edwards v. Arthur Andersen LLP, supra, 44 Cal.4th at p. 944.) Coldwell and Baddin submitted evidence that Obiang had become dissatisfied with Kerrigan's representation and decided not to use him for future real estate purchases before Baddin was ever introduced to Obiang. They also submitted evidence that before Baddin agreed to represent Obiang, Obiang told him, in Berger's presence, that Obiang had ended his relationship with Kerrigan and no longer wanted to work with him.
Kerrigan submitted evidence in opposition to the summary judgment motion that contradicted Obiang's and Berger's declarations that Obiang had decided to completely sever his relationship with Kerrigan. That evidence showed that Kerrigan continued to represent Obiang with regard to a rental property Kerrigan found for him, continued to look for properties for Obiang to purchase, and communicated with Obiang and with the listing agent for the Sweetwater property. Thus, Kerrigan raised a disputed issue of fact regarding the first element of his claim.
Although Kerrigan asserted in his declaration that he continued to pursue the Sweetwater property for Obiang, there is no evidence that Obiang asked him to make an offer to purchase that property (or any other property) after October 19, 2004, the date on which Obiang first met with Baddin.
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Kerrigan produced no evidence, however, to dispute Coldwell's and Baddin's evidence that they had no knowledge of any existing economic relationship between Kerrigan and Obiang, i.e., the second element of the claim. Instead, Kerrigan simply challenges the credibility of the declarations Coldwell and Baddin submitted in support of their motion for summary judgment. Kerrigan's assertions of lack of credibility are insufficient to defeat summary judgment on the interference with prospective economic advantage claim for two reasons.
First, although Kerrigan submitted evidence sufficient to challenge the credibility of some of the statements in the declarations submitted on behalf of Coldwell and Baddin (such as the date that Baddin first agreed to split his commission with Obiang), none of that evidence addressed Obiang's, Berger's, and Baddin's sworn statements that Obiang told Baddin at their first meetings that Obiang had decided he no longer wanted to use Kerrigan as his agent for purchasing real property.
Second, the summary judgment statute provides that summary judgment can be denied on grounds of credibility only if (1) "the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact," or (2) "a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof." (Code Civ. Proc., § 437c, subd. (e), italics added; see Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1370-1371.) Here, Baddin's declaration was not the only evidence presented to establish that Baddin had no knowledge of an existing economic relationship with the probability of economic advantage to Kerrigan. Coldwell and Baddin also submitted declarations from Obiang and Berger stating that Obiang told Baddin, in Berger's presence, that Obiang had ended his relationship with Kerrigan. Thus, there was no basis to deny summary judgment on credibility grounds.
Because the undisputed evidence shows that Kerrigan cannot establish the second element of his intentional interference with prospective economic advantage cause of action, the trial court properly granted summary judgment on that claim in favor of Coldwell and Baddin.
DISPOSITION
The judgment is affirmed. Coldwell and Baddin shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.