Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge., Super. Ct. No. MCV038952
Peter, Rubin & Simon, Arnold P. Peter, Rick R. Smith and Alicia C. Anderson for Plaintiffs and Appellants.
McCormick, Barstow, Sheppard, Wayte & Carruth, David R. McNamara and Scott M. Reddie for Defendants and Respondents.
June Babiracki Barlow, Neil D. Kalin and Jenny Y. Li for California Association of Realtors as Amicus Curiae on behalf of Defendants and Respondents.
OPINION
Kane, J.
Plaintiffs Amy and Philip Miller sought to purchase a business known as Sakani Spa, and to that end met with defendant Donna Pride, a real estate agent employed by codefendant London Properties, to make an offer. Pride informed the Millers that she was exclusively the agent for Terri Papagni, the seller of Sakani Spa; however, she was willing to assist them in a limited, nonagency capacity by filling out a standard form purchase agreement for delivery to Papagni. The Millers, who did not have an agent, agreed to proceed on that basis. After the Millers first read and signed disclosure forms acknowledging that Pride would be acting solely as agent for Papagni and not as the Millers’ agent, a written offer was prepared. Pride took the offer to Papagni, who signed it but added one handwritten qualification: next to the paragraph providing a covenant not to compete, the words “In regards to a spa only” were inserted and initialed by Papagni. (Italics added.) Papagni wanted to clarify that she retained the right to open a small nail salon, as distinct from a full-service spa such as Sakani. Pride allegedly mentioned the change to Amy Miller, who indicated that it was not a problem. The Millers did not initial the change and later denied that they were aware of it. A few months after the sale, Sakani Spa began to lose money and went out of business. Before Sakani Spa closed, Papagni opened a small nail salon. The Millers filed a lawsuit against Pride and London Properties alleging that Pride had acted as an “agent” on behalf of the Millers, that as an agent she was in a position of a fiduciary with respect to their interests, and that she breached her fiduciary duty owed to them by failing to disclose and to advise them of the significance of the alteration made by Papagni to the covenant not to compete language. Following a bench trial, the trial court concluded that there was no agency relationship and therefore no fiduciary duty. Further, the trial court concluded the Millers failed to prove any damages were caused by the alleged breach. On appeal, the Millers contend the trial court erred in those conclusions. We will affirm the judgment.
Although both Pride and London Properties are defendants, for convenience we have focused our discussion on Pride, since she was the individual who was acting on behalf of London Properties and who dealt with the parties.
FACTS AND PROCEDURAL HISTORY
We briefly summarize the facts as found by the trial court and supported by the record. Sakani Spa was owned and operated by Terri Papagni for approximately seven years in Oakhurst, California. It was a full-service spa, providing multiple services and amenities, including hair styling, nails, massage therapy, aesthetician services, tanning and a clothing boutique. In July 2006, Papagni decided to sell Sakani Spa, and she entered into an exclusive listing agreement with Donna Pride of London Properties. The business was listed at a price of $115,000, which included inventory, goodwill and a covenant not to compete.
Amy Miller was working as a manicurist at Sakani Spa when she learned that Sakani Spa was for sale. On December 16, 2006, after some preliminary inquiries, Amy Miller and her husband, Philip Miller, met with Pride for the purpose of making an offer to purchase the business for $100,000 with a four-year covenant not to compete. At the outset of the meeting, Pride informed the Millers that she represented Papagni exclusively. Philip Miller asked Pride if they (the Millers) needed to get their own agent, and Pride explained they could either do that or allow her to assist them in a nonagency “customer” arrangement. Pride had them read through written disclosure forms that explained the matter more thoroughly and the Millers agreed to the customer arrangement.
Specifically, at the December 16, 2006 meeting, Amy and Philip Miller read and executed the following forms that disclosed and defined the nature of their relationship with Pride. First, the Millers read and signed a form entitled “DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS.” This form explained the different potential agency relationships that may exist in a real estate transaction. Namely, a real estate agent may, in a particular transaction, act as the agent representing the buyer, the seller, or both, and to the extent such an agency relationship is formed, the real estate agent would owe a fiduciary duty of utmost care, integrity, honesty and loyalty to his or her principal or principals (e.g., the buyer, the seller, or both). The form also acknowledged that even if a real estate agent represents the seller only, the law imposes on the seller’s agent certain responsibilities that are owed to the buyer as well as the seller: “(a) Diligent exercise of reasonable skill and care in performance of the agent’s duties[;] (b) A duty of honest and fair dealing and good faith[; and] (c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the parties.”
The disclosures in this form are based on Civil Code sections 2079.13 to 2079.24. An agent’s duties are described in section 2079.16, and are identical to what is stated in this disclosure form. Technically, the provisions are applicable to residential real property transactions (see Civ. Code, § 2079.1). It is unnecessary to decide whether such stringent provisions also express the law relating to commercial transactions (as here), since it is clear the parties adopted these provisions to define their relationships.
The second disclosure form that was read and signed by the Millers on December 16, 2006, was entitled, “CONFIRMATION [OF] REAL ESTATE AGENCY RELATIONSHIPS.” This form expressly confirmed that London Properties, and Pride as licensee or broker acting on behalf of London Properties, represented Papagni only in the subject transaction, and were the listing and selling agent exclusively for Papagni.
The nature of the agency relationships were further confirmed in the parties’ subsequent purchase agreement.
The third disclosure form that was read and signed by the Millers on December 16, 2006, was entitled, “CUSTOMER CONFIRMATION.” This form was apparently crafted by London Properties for use in situations where, as here, it acted as an agent for the seller only, but was willing to facilitate the transaction by providing limited (nonagency) assistance or services to the buyer. The customer confirmation form executed by the parties in this case stated, among other things, that London Properties agreed to “[p]repare purchase contracts and documents that, to the best of Broker’s ability, clearly set forth Buyers’ intended offer.” (Boldface omitted.) It labeled the Millers’ relationship to London Properties as that of a “customer” (boldface omitted) and recited the duties that London Properties would owe to a buyer who is provided assistance as a “customer, ” including honesty and fair dealing, disclosure of known defects in the property, and avoidance of misrepresentations, concealments or exaggerations concerning the property. Importantly, paragraph (B) of the customer confirmation form expressly acknowledged that several facts were disclosed to the “Buyer, ” including: “1) Buyer has voluntarily agreed to enter into an agreement to purchase the subject property as a customer of Broker without an agency relationship[;] 2) Broker has elected to disclaim and terminate any and all agency relationship with Buyer[;] 3) Broker shall exclusively represent the Seller with whom they do have an agency relationship[;] 4) Buyer has had an opportunity to seek third party representation and/or legal counsel[;] 5) Broker shall not provide advice to Buyer on matters outside the scope of agency duties owed to the Seller, nor will Broker disclose facts to Buyer which are confidential to Seller.” As noted, Amy and Philip Miller signed the customer confirmation as “Buyer” on December 16, 2006.
After the above disclosure forms were signed, Pride then filled out a standard form purchase agreement entitled “BUSINESS PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS” that would serve as the Millers’ purchase offer (the purchase offer). Pride went over the provisions thereof with the Millers and she “wrote it up the way they wanted [her] to.” The terms offered by the Millers, as set forth on the form purchase agreement, included a $100,000 purchase price, a four-year covenant not to compete, a provision (on Pride’s recommendation) that the purchase be “Subject to buyers[’] CPA approval, ” and a requirement that Papagni provide consulting services for a period of 90 days. In addition, the purchase offer included an express acknowledgement that Pride was the listing and selling agent of Papagni only. The Millers initialed each page of the purchase offer and signed it.
The standard form purchase agreement was California Association of Realtors (or C.A.R.) Form BPA.
The proposed covenant not to compete prohibited Papagni from engaging in any business substantially similar to or in competition with Sakani Spa within a 35 mile radius for a period of four years.
On December 18, 2006, Pride presented the Millers’ purchase offer to Papagni at Pride’s office. During this meeting, the Millers stopped by Pride’s office. The Millers had their children in their car and this caused their conversations with Pride and Papagni to be interrupted a number of times. The Millers testified that Papagni stated that if she could not do nails at Sakani, she would just work for her father in Fresno. Pride and Papagni testified that Papagni told the Millers that Papagni needed to continue to do nails somewhere and she hoped that she could continue at Sakani. Papagni testified that she also told them about an opportunity to work at “All About Me, ” a local salon owned by one of Papagni’s friends. There was also some discussion of Papagni keeping certain lines of clothing, as she was considering possibly opening a boutique in the future. Sometime after the Millers left the meeting, Papagni decided to have the covenant not to compete changed or clarified to include the words, “In regards to a spa only.” Pride and Papagni believed that this addition was consistent with their conversations with the Millers. The Millers disagreed.
After the Millers left, Papagni signed the proposed purchase agreement on December 18, 2006 (hereafter the purchase agreement). As noted above, at Papagni’s request, Pride added the handwritten language to paragraph 11 (the covenant not to compete) of the purchase agreement: “In regards to a spa only.” Papagni dated and initialed the added language. Regarding the added language, Papagni testified that she had to work, so she knew that she needed to continue doing nails, whether at Sakani Spa or someplace else. She also had a desire to possibly open a small clothing boutique. The language was added because Papagni wanted to make sure or clarify that the covenant not to compete in the purchase agreement only applied to a full-service spa and did not preclude her from opening either a nail salon or a clothing boutique.
Pride then called Amy Miller and told her that Papagni had signed and “accepted’ the contract. According to Pride, in that telephone call she (Pride) informed Amy Miller that Papagni had added the language “In regards to a spa only” to the covenant not to compete, and Amy Miller responded that the added language was not a problem. Amy Miller clearly understood that a spa is much more extensive than a nail salon. The next day, Pride delivered the fully executed purchase agreement to Amy Miller at Sakani Spa. Pride never had Amy or Philip Miller initial the added language “In regards to a spa only” in the purchase agreement, as it did not seem to be an issue at the time.
On or about December 27, 2006, escrow instructions from Town & Country Escrow were delivered to the Millers. Page one of the escrow instructions included the following provision that approximated the handwritten language added to the covenant not to compete: “BUYER AND SELLER HAVE ENTERED INTO AN AGREEMENT OUTSIDE OF ESCROW THAT: The seller will not engage, either directly or indirectly, in the spa business within a radius of 35 miles from the subject premises for a term of 4 years from buyer’s date of possession.” (Boldface added.) The Millers carefully reviewed the escrow instructions and believed that they accurately reflected the parties’ agreement.
Escrow closed on February 13, 2007. After Amy Miller began to operate Sakani Spa, the atmosphere of the business changed. Several witnesses testified that it was not as friendly or happy as before, and customers were not catered to or treated as well as they had been under Papagni. It was no longer a fun place to work, but was tense. Unlike Papagni, Amy Miller did not dress professionally or have her hair done, as would be expected or appropriate in a spa setting. She was also not present as often as Papagni had been and she did not actively promote the sale of boutique items to customers as Papagni had consistently done. Amy Miller also changed the inventory to focus on a younger age of clientele. In addition to these changes, there was a great deal of staff turnover in the short time that Amy Miller operated Sakani Spa. She made decisions that led some personnel at Sakani Spa to leave, and others she terminated. Each time this happened, clients would leave and take their business elsewhere because they followed a particular manicurist, stylist, cosmetologist, aesthetician or other service provider to her new place of employment. According to Philip Miller, Sakani Spa made a net profit in February and March of 2007, but by April of 2007 it was losing money.
In April of 2007, Papagni gave 30 days’ notice that she would no longer be working at Sakani Spa. She felt it was time to cut her ties to Sakani, because people were continuing to associate the business with her, not with Amy Miller, and they were still coming to her (Papagni) with questions and concerns. Papagni’s intention was to work at “All About Me” as a manicurist. At the time she left Sakani Spa, Papagni had only about five clients because she had been focusing her efforts on running the business instead of working as a manicurist. Another manicurist at Sakani Spa, Patty Kloppenberg, gave 30 days’ notice on April 17, 2007, shortly after Amy Miller asked her to sign a written, independent contractor agreement that included wording to the effect that Kloppenberg’s clients belonged solely to Sakani Spa and not to Kloppenberg. Kloppenberg changed the wording to reflect that her clients remained hers. Amy Miller was agreeable to the change, but Kloppenberg decided it was time to leave. Kloppenberg testified the reason she decided to leave was “because I could see a sinking ship.” That is, “everybody was leaving, the place wasn’t what it was, ” and Kloppenberg had “a very loyal and large clientele” that she had to take care of as her first priority. Therefore, she felt that she “had to start looking to go somewhere else, ” and her intention was to work at a salon called Silhouettes. On April 17, 2007, Amy Miller told both Papagni and Kloppenberg they had to be out within 24 hours.
Soon after Papagni left, she received a call from a friend letting her know about a little building that was for rent for $400 per month. Papagni spoke with Kloppenberg and the two of them decided to rent the building and open a small nail salon, which they later called “La De Da.” The business opened in late April of 2007, was limited to nails and was not anything like a full-service spa.
On May 7, 2007, only three months after they had purchased Sakani Spa, the Millers met with Pride and informed her they wanted to list Sakani Spa for sale because the business was failing and Amy Miller decided she wanted to stay home with her children instead of trying to run a business. The Millers told Pride they wanted to list the business for $75,000, but Pride advised them to think about listing it for $100,000, since that was what they paid for it. On May 16, 2007, the Millers met with Pride again, said they had spoken to an attorney and they were not happy with the terms of the purchase agreement and wanted to be made whole. According to Amy Miller, she told Pride that she would not have approved the purchase agreement if she had known the covenant not to compete was in regards to a spa only.
The Millers attempted to sell Sakani Spa through another broker at a listed price of $50,000 plus inventory, but it did not sell. On July 3, 2007, the Millers closed Sakani Spa permanently. On August 1, 2007, Philip Miller negotiated an agreement with the landlord to get out of the existing lease in exchange for all the assets and inventory of the business.
The Millers subsequently commenced this action against Pride and London Properties, alleging causes of action for intentional misrepresentation, concealment, negligent misrepresentation, negligence, breach of fiduciary duty and unjust enrichment. Following a bench trial, the trial court found in favor of defendants on all causes of action. In regard to the alleged concealment or failure to disclose the added language, the trial court found Pride’s testimony to be more credible that she in fact had expressly informed Amy Miller of the added language. In discussing the several related theories of misrepresentation and breach of professional duties, the trial court found there were no damages shown to be caused by the alleged conduct on the part of Pride and London Properties, but rather the losses to the business were the result of Amy Miller’s management of the business. As to the breach of fiduciary duty cause of action, the trial court determined that there was no agency relationship and therefore no basis for a fiduciary duty.
Papagni is not a defendant in this action and the issue of whether she breached the covenant not to compete is not an issue.
The Millers have appealed from the judgment, but the only cause of action at issue in their appeal is that of breach of fiduciary duty. They contend the trial court erred in concluding there was no agency relationship that would give rise to a fiduciary duty. They also contend the trial court erred in concluding no damages were caused by Pride’s conduct. We hold the trial court’s finding that there was no agency relationship was supported by substantial evidence, and therefore we affirm the judgment.
DISCUSSION
I. Standard of Review
The existence of any agency relationship is ordinarily a question of fact. (Brokaw v. Black-Foxe Military Institute (1951) 37 Cal.2d 274, 278; Violette v. Shoup (1993) 16 Cal.App.4th 611, 619; Associated Creditors’ Agency v. Davis (1975) 13 Cal.3d 374, 383; Vargas v. Ruggiero (1961) 197 Cal.App.2d 709, 715.) Thus, if the evidence is in conflict or if more than one reasonable inference may be drawn from undisputed evidence, we apply the substantial evidence test and review the trial court’s conclusion in the light most favorable to the judgment. (Brokaw v. Black-Foxe Military Institute, supra, at p. 278 [where conflicting inferences may be drawn from evidence, inference of agency upheld]; van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 562; Violette v. Shoup, supra, at. p. 619; see also CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th 1101, 1119; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 376, p. 434.) To the extent that the facts are not in dispute and the evidence is susceptible to but a single inference, the agency determination becomes a question of law for the court. (van’t Rood v. County of Santa Clara, supra, at p. 562.)
Here, as will become apparent, the evidence was in conflict on certain points, and furthermore, even assuming it was not in conflict, the trial court could reasonably draw conflicting inferences on the question of agency. Accordingly, the substantial evidence rule applies to our review. “When a court’s finding is attacked on the ground that it is not supported by the evidence, the power of an appellate court begins and ends with the determination whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding or verdict. Questions of credibility must be resolved in favor of the factfinder’s determination, and when two or more inferences can reasonably be drawn from the evidence, a reviewing court may not substitute its deductions for those of the trier of fact.” (Montoya v. MacLeod (1985) 176 Cal.App.3d 57, 62.)
II. Substantial Evidence Supported Trial Court’s “No Agency” Finding
A. Agency Law
We begin with a brief overview of the relevant principles of the law of agency. “An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.” (Civ. Code, § 2295.) “An agency is either actual or ostensible.” (Id., § 2298.) “An agency is actual when the agent is really employed by the principal.” (Id., § 2299.) “An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (Id., § 2300.) In the present case, we are plainly dealing with a situation of an alleged actual agency. That is, the Millers are claiming that Pride acted as their agent in the transaction.
An actual agency is typically created by an express contract or authorization. (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 92, p. 139.) “‘“Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” [Citation.] “The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control.” [Citation.]’” (van’t Rood v. County of Santa Clara, supra, 113 Cal.App.4th at p. 571, quoting Edwards v. Freeman (1949) 34 Cal.2d 589, 592.) Thus, the “‘“formation of an agency relationship is a bilateral matter. Words or conduct by both principal and agent are necessary to create the relationship.…”’ [Citation.]” (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 588.)
“The contract may be oral, except where the agency is to enter into a contract required by law to be in writing, in which case the authorization must be in writing under the ‘equal dignities’ rule. [Citations.]” (3 Witkin, Summary of Cal. Law, supra, § 92, p. 139, citing Civ. Code § 2309.) One of Pride’s arguments to support her position that she was not the Millers’ agent is the contention that the agency had to be in writing under the equal dignities rule. Contrary to Pride’s argument, the equal dignities rule did not apply here because, among other things, the alleged agency was not one in which Pride was authorized to enter any contract on the Millers’ behalf, much less one required to be in writing. Pride’s services were clearly more limited than that. Also, the rule is generally not applied to prohibit enforcement of duties inherent in a principal-agent relationship, but rather to curtail third party claims against principals on contracts required to be in writing. (See Sunset-Sternau Food Co. v. Bonzi (1964) 60 Cal.2d 834, 839 [so holding].) In any event, Pride’s argument that the equal dignities rule applied was forfeited in this case by her failure to raise that issue in the trial court. Of course, there was no lack of a writing or writings to define the parties’ relationship in this case, but as correctly noted by both Pride and the trial court, those writings evidence the absence of an agency relationship.
An agency relationship may generally be shown by evidence of the acts of the parties and their oral and written communications. (Magnecomp Corp. v. Athene Co. (1989) 209 Cal.App.3d 526, 536.) Proof of agency authority may be established by circumstantial evidence. (van’t Rood v. County of Santa Clara, supra, 113 Cal.App.4th at p. 573.) An agency is not established by merely offering assistance or making suggestions. (Violette v. Shoup, supra, 16 Cal.App.4th at p. 620.) A number of factors have been recognized by courts and commentators in determining the existence of an agency relationship, including “the right of the principal to control the activities of the agent, the agent’s right to exercise discretion, and the payment of compensation, but the primary test is the intention of the parties.” (2 Miller & Starr, Cal. Real Estate (3d ed. 2000) Agency, § 3.5, p. 19, italics added.) That is, “the primary tests for the creation of an agency is the intention of the principal to employ the agent to act on behalf of the principal in dealing with third persons as the principal’s representative, and the agent’s intention to accept the employment. There is no agency relationship in the absence of such intent by both parties.” (Id. at p. 25, fn. omitted; accord, Edwards v. Freeman, supra, 34 Cal.2d at pp. 591-592; Hanks v. Carter & Higgins of Cal., Inc. (1967) 250 Cal.App.2d 156, 160-162.)
B. The Trial Court’s Findings and Evidentiary Support
In determining the issue of agency, the trial court weighed and considered the fact that the written disclosure forms filled out by the Millers plainly declared that Pride was not their agent, but exclusively the agent for Papagni, and that any assistance being offered to the Millers was on a “customer” basis only. The trial court found such disclosure forms to be of critical significance to the agency issue, and held that they clearly defined the relationship between the Millers and Pride in nonagency terms.
One conflict in the evidence was the nature and timing of what was said at the meeting in which the Millers signed the disclosure forms. For example, according to Philip Miller, Pride had represented that she would be agent for both parties and would represent both sides of the transactions. Pride, in contrast, testified that she informed the Millers that she was exclusively the agent for Papagni, but also carefully explained to the Millers the difference between agency and providing some assistance to them as a “customer.” In evaluating the testimony relating to this meeting and what took place, the trial court made the following findings:
“[The Millers], although their recollection of the event is vague, admit to signing the [disclosure forms]. [Philip] Miller testified that when … Pride advised him that she was going to be representing [Papagni] only, he inquired whether they would need their own agent. Although he then becomes less clear, he does admit to reading the [disclosure forms] before he signed. The only thing … [Philip] Miller testified to regarding the Customer Confirmation was that he read and signed it and that he remembers … Pride told [the Millers] she could represent both sides. He is unsure if it was at this time that Pride had him read the Customer Confirmation. [] Pride testified that she did explain to the [Millers] that she represented [Papagni] exclusively. At that time, … [Philip] Miller questioned whether [the Millers] need[ed] their own agent. [] Pride testified that in response to the aforementioned question, she explained that she could work with them as customers. She then had … [Philip] Miller read the Customer Confirmation. She testified that since … Amy Miller did not read the document, she read it aloud so that … Amy Miller would know what she was signing. After she explained the document, both [of the Millers] executed the Customer Confirmation agreement.
“The court finds that … Pride properly explained that she was the exclusive agent of [Papagni] and that she could work with the [Millers] in their capacity as customers. The court further finds that [the Millers] thoughtfully executed the Customer Confirmation document and properly understood that … Pride was the exclusive agent of Papagni and that they were customers of … Pride. Thus, because [the Millers] both understood and executed the [disclosure forms], no fiduciary relationship existed between the parties.”
It is apparent that the trial court considered the conflicting testimony regarding what was said and when at the initial meeting in which Pride had the Millers execute the disclosure forms, and it found Pride’s version of those events more credible and less vague. Further, the trial court found that the Millers read and understood the disclosure forms, which defined the nature of their relationship with Pride. Considering the importance that the law of agency attaches to the intentions of the parties in the creation of an agency relationship, we have no difficulty in concluding there was substantial evidence to support the trial court’s “no agency” finding, based on the written documents clearly disclosing that fact. At the very least, that finding was an inference the trial court could reasonably draw from the evidence, even if a different inference also could be made.
The trial court also resolved a discrepancy between Pride’s former deposition testimony and her testimony at trial. Pride had previously referred to herself as the Millers’ agent, but at trial she explained that she only meant that she prepared the purchase offer. The trial court accepted her explanation of what she meant in the prior testimony.
The Millers have one further argument. That is, it is argued that the subsequent conduct of the parties was sufficient to create an agency relationship, notwithstanding the disclosure forms. Specifically, the Millers claim the fact that Pride transmitted their purchase offer to Papagni made her their agent. (See Wright v. Lowe (1956) 140 Cal.App.2d 891, 896-897.) We find that argument unpersuasive for two reasons. First, since Pride was Papagni’s agent, she was already required to transmit or deliver any purchase offer to Papagni. (Smith v. Zak (1971) 20 Cal.App.3d 785, 793.) The fact that Pride complied with her preexisting duties to Papagni under circumstances in which it was fully disclosed that she was exclusively Papagni’s agent did not make her an agent for the Millers. Second, the case of Wright v. Lowe, unlike the present case, did not involve a situation in which the parties had clarified and limited the nature of their intended relationship in advance, in writing. We therefore find that case to be distinguishable.
The Millers also argue that Pride acted as an intermediary prior to close of escrow, when the Millers were concerned about issues such as the apparent depletion of inventory. Pride apparently scheduled a meeting to get the parties together to discuss their concerns. We agree with the trial court’s finding that such conduct did not create an agency relationship with the Millers under the facts of this case. As the trial court put it, “Pride’s actions as an intermediary on one or two occasions” did not “confer[] upon her a fiduciary relationship with respect to [the Millers].” Again, under all the facts, the trial court was entitled to draw the inference of no agency, and we decline to substitute our own inference or deduction for that of the trial court.
In conclusion, substantial evidence supported the trial court’s factual conclusion of no agency relationship, and therefore we uphold that conclusion. Accordingly, there was no basis for a fiduciary duty to support the Millers’ cause of action for breach of fiduciary duty, and thus trial court correctly disposed of it. In light of this conclusion, we find it unnecessary to address the Millers’ other contentions relating to the breach of fiduciary duty cause of action.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Pride and London Properties.
WE CONCUR: Wiseman, Acting P.J., Hill, J.