Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC454956, Mac R. Fisher, Judge. Affirmed.
Law Offices of Michael G. York and Michael G. York for Plaintiff and Appellant.
Sachse, James & Lopardo and Steven V. Lopardo for Defendants and Respondents.
OPINION
MILLER, J.
Plaintiff and appellant James McDonald (the buyer) purchased a home and surrounding property in 2004. Defendants and respondents Rancon Real Estate Corporation and Shamsah Husein were the real estate brokerage and sales agent, respectively, on the sale of the property. The buyer sued defendants for alleged intentional and negligent misrepresentation, in stating that the entire property was 1.85 acres in size, when in reality it was less. The trial court granted defendants’ motion for summary judgment; defendants admitted that the representation of 1.85 acres had occurred, but adduced evidence to show that the buyer had known the property was not 1.85 acres in size, and thus that he did not rely on the statement. The buyer appeals from the judgment entered after the court granted the motion for summary judgment. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Defendant Husein (the agent) was a real estate sales agent for defendant Rancon Real Estate Corporation (the broker). On September 28, 2004, the buyer made an offer on a house in Lake Elsinore. The sellers accepted the offer on September 30, 2004, and escrow closed on December 30, 2004.
The buyer had apparently received a flyer from the broker, advertising the property. The flyer stated that the property was 1.85 acres in size. Other than the advertisement in the flyer, neither the broker nor the agent ever wrote or orally stated that the property was 1.85 acres. The buyer did visit the property with the agent before the sale. The agent pointed out some fence lines, and the buyer believed that the property he was buying was within the fence lines. The property actually consisted of three separately assessed parcels; the house sat on one parcel (that had itself originally been two separate parcels that were combined when the house was built), and the other portions of the property were adjacent.
The purchase agreement contained provisions advising the buyer that the broker and agent had not independently verified the size of the property, and that if the exact area was important to purchaser, the purchaser should obtain an independent survey. The buyer elected not to get an independent appraisal of the acreage, and he testified that he believed when he purchased it that the property was 1.85 acres.
The buyer had intended to, and did, use the property as his primary residence. He had no specific plans for the use of the property that were affected by the expectation that he had 1.85 acres. He was able to use the property as he intended, regardless of its actual size.
The next year, sometime in 2005, the buyer was approached by another realtor who offered to sell the property. The buyer alleged that it was when he listed the property for sale with the new broker that he became aware of the discrepancy in the size of the property.
The buyer complained to the agent, faxing her some documentation he found in his records. He sent her a copy of a property profile he had received from First American Title Company, showing that the combined lot where the house sat was approximately 0.44 acres. The parcel map showing that the two additional lots together matched the size and shape of the house lot; thus, the buyer concluded that his property was really only about 0.88 acres in size.
Ultimately, the buyer filed suit in August 2006 alleging causes of action for intentional misrepresentation against the agent, intentional misrepresentation against the broker, and negligent misrepresentation against both defendants.
Defendants filed their motion for summary judgment in June 2007. They pointed out that, as the buyer had testified at his deposition, although he claimed on the one hand that he believed at the time of purchase that the property was 1.85 acres, the sole source of that belief was the advertising flyer. He acknowledged that the purchase agreement had advised him that the broker had not independently verified the square footage of the home or the acreage of the property, and that he should obtain an independent appraisal if the size of the property was important to him. The agent had made no other representations, orally or in writing, about the acreage of the property.
Although the buyer elected not to obtain an independent survey to verify the acreage, he had asked his title insurance company, before the close of escrow, for a property profile. That property profile expressly indicated that the house portion of the property was 0.44 acres. The buyer also had received the parcel map, from which he later easily deduced that the remaining two parcels were about equivalent in size to the house parcel, so that his overall property was about 0.88 acres in size. In addition, defendants pointed to the buyer’s testimony that he had no specific intentions with respect to the property that were affected by the discrepancy in size. Thus, they argued, the buyer could not have relied on the representation of the 1.85 acres, nor did the representation, made solely in the advertising flyer, cause the buyer any damage.
The trial court granted the summary judgment motion against the buyer, and eventually entered judgment thereon.
The buyer now appeals.
DISCUSSION
A. Standard of Review
The standard of review on summary judgment is well settled. “Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo.” (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210.) “In undertaking our independent review of the evidence submitted, we apply ‘“the same three-step process required of the trial court: First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]”’ [Citation.]” (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 392.)
B. Step One—Issues Identified by the Pleadings
The buyer’s complaint alleges separate causes of action against the broker and the agent, respectively, for intentional misrepresentation. The elements of intentional misrepresentation are: (1) an assertion by the defendant that an important fact is true; (2) the representation is false; (3) the defendant knew that the representation was false, or made the representation recklessly, without regard for its truth; (4) the defendant intended the plaintiff to rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was damaged; and (7) the plaintiff’s reliance was a substantial factor in causing the damage. (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 & fn. 4, citing CACI No. 1900.)
Similarly, the buyer’s cause of action against both defendants for negligent misrepresentation required 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.)
Defendants’ motion for summary judgment attacked both causes of action at the points of reasonable or justifiable reliance, and causation (i.e., the representation did not cause any damage, or, if the buyer did suffer damage, the damage was not caused by his reliance on the representation as to acreage). In addition, defendants asserted that the buyer could not adduce any evidence that the misrepresentation was intentional.
C. Step Two—Defendants’ Moving Papers Entitled Them to Judgment In Their Favor
The broker and the agent argued that based on certain statements during the buyer’s deposition testimony, he had essentially admitted he knew, well before closing escrow on the purchase, that the property was.88 acres and not 1.85 acres in size. That is, the buyer had requested and received from First American Title Company the property profile, showing that the house parcel was.44 acres in size. First American had faxed the property profile with this information to the buyer in October 2004, several weeks before the close of escrow.
The buyer testified at his deposition that, by taking the.44 acres shown on the property profile and adding the size of the other two lots, “‘all that together would come up to approximately.88 [acres].’” He also responded to a question, “When you received this [i.e., the property profile], it was clear to you that the property did not have 1.85 acres, it had.88 acres?” by answering, “Yes.”
Defendants argued that the buyer “admitted under oath that he knew the true actual size of the Property before the close of escrow.” Thus, he could not reasonably have relied on any representation that the property was 1.85 acres. In addition, the buyer had specifically been advised in writing in the purchase documents that the representations as to size were approximations only, that the broker and agent had not made an independent inspection of the property to verify square footage or size, and that it was the buyer’s obligation to do so if the acreage was important to him. The buyer initialed these advisements. The buyer therefore could not reasonably have relied on the statement in the advertising flyer that the property was 1.85 acres.
Defendants pointed to Carpenter v. Hamilton (1936) 18 Cal.App.2d 69 for the principle that a buyer who makes an independent investigation of the property, without interference from the seller, will be conclusively presumed to have obtained all the information which would have been disclosed if the inquiry had been pursued with due diligence. (Gifford v. Roberts (1947) 81 Cal.App.2d 712, 719; see Carpenter, at pp. 71-72.) Because the buyer conducted an independent investigation—that is, he asked for a property profile which was faxed to him—before the close of escrow, he was charged with knowledge of the property’s true acreage and could not have relied on the misrepresentation.
Defendants argued that the buyer also could not establish the element of causation, i.e., there was nothing to show that the representation as to acreage was a substantial factor in causing any harm to the buyer. Defendants based this argument in part on a repetition of the argument that the buyer knew before escrow closed that the true size of the entire property was.88 acres instead of 1.85 acres. They also argued that the buyer was able to purchase and use the property precisely as he had intended. He had testified that he had no plans to split or subdivide the property, that he intended to use it as his primary residence, and that he in fact did use the property for that purpose. He had thought about keeping a horse or goat on the property, but had not actually done so. None of his intended uses had been affected by the size of the property. This tended to militate against the claim that the buyer had relied on the representation, or that he had in fact suffered any damage as a result of that reliance.
Finally, the broker and the agent moved for summary adjudication of issues as to both intentional misrepresentation causes of action, based on the buyer’s testimony that the sole representation (i.e., that the property was 1.85 acres) was contained in the advertising flyer, that the agent made no other oral or written representations as to acreage, and that the buyer had no facts to suggest that the broker or agent had made any intentional misrepresentation.
The moving papers prima facie negated critical elements of the buyer’s causes of action, and thus were sufficient to entitle the broker and agent to judgment in their favor.
D. Step Three—The Buyer Failed to Raise a Disputed Triable Issue of Material Fact
The buyer opposed the motion, arguing that the broker’s and agent’s arguments were based on taking his literal deposition testimony out of context, and making it appear as if the buyer had made a direct admission of knowledge before the close of escrow, when in fact he had made no such admission.
The property consisted of four parcels, with three tax assessment numbers. The buyer had requested and received a property profile, but that property profile only covered a portion of the property, only one of the parcels. The property profile indicated that one parcel was approximately 0.44 acres, but because that one parcel might have been only one-fourth of the entire property, the total acreage might have been as much as 1.76 acres, or fairly close to the 1.85 acres that had been represented. Thus, receipt of the property profile did not alert the buyer to the discrepancy in the representations about acreage. Moreover, counsel argued, when the buyer answered “Yes” to the question, “When you received this [property profile], it was clear to you that the property did not have 1.85 acres,” the buyer was admitting only that the small portion of the property included in the profile did not equal 1.85 acres. The buyer himself did not officially amend his deposition, but his attorney sent a letter requesting additions to his testimony, “to prevent his testimony from being taken out of context.” With the amendments (shown underlined), the deposition testimony would read: “Q. When you received this [property profile], it was clear to you that the property in the property profile did not have 1.85 acres, it had.88 acres? [¶] A. Yes. [¶]... [¶] Q. You testified when you got this, you interpreted it to mean you got.88 acres? [¶] A. Right, as to the property in the property profile.” (Italics and underline added.)
The buyer is correct that there was some ambiguity in his testimony as to the property profile and its implications for the size of his property. In 2005, a year after he had purchased the property, another broker solicited him to list the property for sale. At that time, the buyer received “property information” from the new broker, as well as a map. A fair reading of the buyer’s testimony shows that it was from reviewing these documents when he received them in 2005 that the buyer concluded that his entire property was smaller than the 1.85 acres that had been represented at the time of his purchase.
Nonetheless, any ambiguity as to the timing of the buyer’s realization does not change the import of the buyer’s receipt of the property profile in 2004. The “property information” the buyer received from the new broker (also sometimes referred to as a “printout”) was identical to the property profile that the buyer had received from First American Title Company in 2004, while the purchase escrow was still open. In both 2004 and 2005, the buyer received a document clearly showing that the house parcel was only 0.44 acres in size. He therefore knew or should have known at that time that the entire property was well less than 1.85 acres.
The buyer argues there is a further ambiguity as to whether his deposition testimony (i.e., that he realized the size was less than 1.85 acres) referred to the entire property, or only to that portion covered in the property profile. This alleged “ambiguity” is untenable. If the buyer had intended to testify that he realized only that the portion of the property covered by the property profile was less than 1.85 acres, he would have testified that he believed “the property” (i.e., the profile portion) was 0.44 acres. He did not do so. In each instance, he clearly acknowledged his understanding that “the property” was not 0.44 acres, but 0.88 acres. The basis for this testimony was made clear: The property had originally consisted of four parcels, two of which had been combined where the house was situated. The two remaining parcels were of the same approximate configuration as the combined house parcel. Because the house parcel (two parcels combined) was 0.44 acres, and because it was the same size as the two remaining parcels, the buyer concluded that the entire property was 0.88 acres in size. The buyer plainly testified to his understanding that the entire property was approximately 0.88 acres. The attempts to “amend” the buyer’s deposition testimony to refer only to the portion of the property covered by the property profile (quoted, ante) are belied by the italicized portions of the quoted statements. The buyer would never have referred to “the property” as 0.88 acres, if he had truly intended his remarks to refer only to the portion of the property described in the property profile; that portion of the property was 0.44 acres, not 0.88 acres.
A party cannot create an issue of fact by a declaration which contradicts his prior discovery responses. (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860-861; see also D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.) Not only that, but the buyer never actually filed a declaration in opposition to the motion for summary judgment. The opposition to a motion for summary judgment must consist of proper affidavits, declarations and other matters. (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 72-75.) The buyer never presented affidavits or declarations, his attorney simply tried to amend the buyer’s deposition testimony indirectly, to contradict the plain import of his answers.
Ultimately, even if the buyer testified that he did not realize until a year later, when he saw the map in addition to the property profile, that his property was less than 1.85 acres, and that it was actually 0.88 acres in size, the fact remains that, while escrow was pending, he requested and received the property profile information, which clearly indicated that the house parcel was only 0.44 acres. The buyer had been to the property; he visually inspected the house lot and the additional parcels, and could see their relative sizes and configurations. He had actual notice of the diminished size of one-half of the property, and observational inspection of both halves of the property. Whether he did not consciously realize the discrepancy until he relisted the property for sale in 2005, he was in possession in 2004 of all the facts which would have disclosed the actual size of the property.
In opposition to the motion for summary judgment, the buyer presented no affidavits or declarations. That left matters essentially undisputed; the buyer’s opposition was insufficient to demonstrate the existence of a triable issue as to any material fact.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: GAUT, Acting P. J., KING, J.