Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV060678
Pollak, J.
Plaintiff George Morf appeals from a summary judgment dismissing his complaint against defendants Meridian Commercial, Inc. (Meridian), Thomas J. Kearney, and Alex McLean. We agree that summary judgment should not have been granted and, therefore, shall reverse the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the documents submitted in support of defendants’ motions for summary judgment and Morf’s opposing documents. The documents appearing at pages 139 through 156, and pages 200 through 253 of the clerk’s transcript were submitted by the parties concerning a motion to continue the trial date filed by defendants Meridian Commercial and Thomas J. Kearney. Because those latter documents are not part of the record that was before the trial court on defendants’ motions for summary judgment, they are not properly before us and we have not considered them in reaching our decision.
In 2004, the First Church of Christ Scientist (the church) offered for sale certain property in Larkspur. Kearney, a real estate agent affiliated with Meridian, was responsible for receiving offers on the property. Kearney received 12 offers, including a $ 1.371 million offer from Morf. The church accepted a competing offer submitted by McLean and signed a purchase agreement with him. Nonetheless, the church was eager to sell the property and entered an agreement with Morf, prepared by Kearney, under which the church agreed to sell the property to Morf at his proffered bid price if the sale to McLean was not completed.
After Morf learned of the issues concerning the bidding process that are the subject of this action, he filed suit against McLean, Kearney and Meridian. Morf alleged causes of action for negligence, fraudulent concealment and negligent misrepresentation by omission, and intentional interference with a prospective economic advantage. Each cause of action was based in part on allegations that Kearney had been acting as a dual agent for the church and McLean, that Kearney had misrepresented to the church the terms of Morf’s offer, that Kearney “rigged” the bidding process by using information from Morf’s offer to structure McLean’s offer, making McLean’s offer appear the most favorable to the seller although it did not contain the best terms; and that McLean ratified Kearney’s misconduct by taking possession of the property and failing to remedy Kearney’s misconduct when he learned of it. Morf also alleged that he had the cash and requisite financing to fund an immediate purchase of the property at the offering price. As the direct and proximate result of defendants’ conduct, Morf alleged that he had been damaged in an amount that exceeded $900,000.
Although Morf also named the church as a defendant, he subsequently voluntarily dismissed the church.
In the cause of action for intentional interference with a prospective economic advantage, Morf alleged that by making an offer to purchase the property he had entered into a potential economic relationship with the church; he had a reasonable expectancy of economic gain resulting from the relationship because the property was valued at over $1,500,000; Kearney was aware of the potential economic relationship between Morf and the church, and by intentionally failing to properly submit Morf’s offer proximately caused irreparable harm to Morf’s economic relationship with the church; and Morf suffered a substantial loss as a result of defendants’ tortious conduct.
In answering Interrogatory 9.1 of form interrogatories submitted by McLean, which presumably asked whether there were any damages he attributed to the “incident,” Morf replied as follows: “The property and its build out would have provided plaintiff with full time employment and ordinary income for approximately a two-year period. Plaintiff’s Project Pro Forma, produced concurrently herewith, shows: (A) general cont[r]actor’s fee of $100,000.00; (B) supervision fee of $120,000.00; and (c) a net profit from the sale of three single family residences on the property of $997,506.89. All total, plaintiff’s damages exceeded $1,217,506.89. That figure does not reflect rapid appreciation in the relevant housing market during 2004-2005. In addition, plaintiff seeks punitive damages, the amount to be determined, caused by Meridian Commercial, Thomas J. Kearney and Alex McLean.” In response to Interrogatory 9.2, Morf identified “Plaintiff’s Project Pro Forma, produced concurrently herewith.”
The record does not contain the interrogatories posed by McLean. The Judicial Council Form Interrogatories-General read as follows: “9.1 Are there any other damages that you attribute to the incident? If so, for each item of damage state (a) the nature; (b) the date it occurred; (c) the amount; and (d) the name, address, and telephone number of each person to whom an obligation was incurred. 9.2 Do any documents support the existence or amount of any item of damages claimed in interrogatory 9.1? If so, describe each document and state the name, address, and telephone number of the person who has each document.” (Cal. Judicial Council Form DISC-001 (formerly F1-120 (08)).) Based upon Morf’s responses which are in the record, we assume that the questions propounded by McLean were as set forth in the Judicial Council form interrogatories.
Following the submission of these interrogatory responses, defendants deposed Morf. Morf was questioned about his financial ability to purchase the property and about the documents he submitted to Kearney in support of his offer. Morf confirmed that a letter from the loan company through which he was to obtain a loan on the property had been submitted after the deadline for the submission of documents. Morf also testified that in preparing his purchase offer, he did not pay any of the consultants to whom he spoke about the cost of the development and did not pay any commission to his real estate agent. In response to a question whether it is common in commercial real estate transactions for escrow periods to be renegotiated, Morf replied, “Yeah, in residential . . . land, it can happen with delays and . . . environmental especially nowadays is very – you never know what’s going to happen with it.” Morf was also questioned about other properties he had purchased for development. In response to a question about another property for which he had submitted an offer and later renegotiated the terms of the offer, Morf replied, “Right. Which is a property we’re in now, an option. And that just occurred in the last three weeks. And, again, that was to extend time on a closing for a year, just due to planning delays for entitlements on the property. And we also extended or reallocated a payment due date. So we took most of the payment due closer to the back end of the property. The amount didn’t change; it was just reallocated a little differently.” When asked if the closing on that other property would be delayed, Morf replied, “ It’ll delay closing by approximately another year and potentially two, but we’re not sure yet.” When asked if he recalled a situation in which he made an offer on a property that a seller had previously attempted to sell other than the church property, Morf replied: “Yeah, we had an option on a property in Santa Rosa that the people had some big developers had tied it up for years, I guess. And then so we went into an option on it, and then we let it go. It was too many environmental issues, once again.”
Thereafter, defendants separately moved for summary judgment and/or summary adjudication. Defendants did not question Morf’s ability to prove the liability elements of any of the causes of action. They sought summary judgment or adjudication only on the narrow ground that Morf could not establish the damages necessary to sustain each cause of action. Defendants argued that because Morf did not actually acquire the church property, he could not recover his alleged lost profits arising from the future development of the property. Instead, Morf was limited to recovering out-of-pocket expenses pursuant to Civil Code section 3343. Because Morf conceded at his deposition that he had not incurred any out-of-pocket expenses in preparing his purchase offer, he could not possibly prevail. Defendants alternatively argued that, as a matter of law, any lost profits were too remote, uncertain, and speculative to constitute legally compensable damages. Defendants’ separate statements of facts were supported by the excerpts from Morf’s deposition testimony described above and by Morf’s response to Interrogatory 9.1. Although Morf’s response to Interrogatory 9.1 referred to his “Project Pro Forma,” which purportedly was included with the response to Interrogatory 9.2, defendants did not submit that document as part of their motion papers.
In opposition, Morf argued that defendants’ motions were based on the assertion that “unforeseeable events might disrupt [his] project,” but they did not assert that “development costs and market analysis are unreliable or elusive so that lost profits cannot be accurately calculated. And they certainly offer no evidence to that effect. Rather, they contend—again without any evidence—that Morf’s damages depend on a series of presumptions and inferences that [he] would face few, if any, glitches in the development process.” Morf submitted his own declaration in which he stated that subsequent to the submission of his response to Interrogatory 9.1, there had been a substantial increase in land values and home prices in the Larkspur area, as a result of which his lost profits were no less than $3.680 million as of August 31, 2007.
In reply, defendants repeated their arguments that Morf’s purported damages were too speculative to be compensable, and that Morf was limited to out-of-pocket damages, of which there were none. McLean also argued that Morf had no evidence to demonstrate the probability of a profit on his development of the property because, among other things, he had not offered any evidence to substantiate his pro-forma projection of lost profits identified in his response to Interrogatory 9.1.
The trial court ultimately granted defendants’ motions for summary judgment, concluding that the excerpts of Morf’s deposition testimony and his response to Interrogatory 9.1 satisfied defendants’ burden of showing that damages could not be established because they were speculative, and that Morf’s opposition failed to raise a triable issue of fact concerning the element of damages as to each cause of action.
Judgment was entered in favor of defendants, and Morf’s timely appeal ensued.
DISCUSSION
Because defendants were granted summary judgment, we review the record de novo. As the moving parties, defendants “bear[] the burden of persuasion that there is no triable issue of material fact and that [they are] entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.) They meet this burden by showing “ ‘that one or more elements of the cause of action . . . cannot be established’ by the plaintiff.” (Id. at p. 853.) Defendants may either “present evidence that conclusively negates an element of the plaintiff’s cause of action” or “present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing. But, . . . defendant[s] must indeed present evidence.” (Id. at p. 855; fn. omitted.) “Summary judgment law in this state . . . continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854,fn. omitted.)
The gravamen of Morf’s claim is that defendants wrongfully induced the church not to accept his purchase offer for the property. Although the complaint alleges various causes of action, the single cause of action that Morf addresses on appeal is the fourth for intentional interference with a prospective economic advantage. (See Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1153.) “In order to prove a claim for intentional interference with [a] prospective economic advantage, a plaintiff has the burden of proving five elements: (1) an economic relationship between the plaintiff and a third party, with the probability of future economic benefit to the plaintiff; (2) the 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.] ‘[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.’ ” (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 944.) “It is this independent wrongfulness requirement that makes defendants’ interference with plaintiff’s business expectancy a tortious act. . . . [T]he requirement of pleading that a defendant has engaged in an act that was independently wrongful distinguishes lawful competitive behavior from tortious interference. Such a requirement ‘sensibly redresses the balance between providing a remedy for predatory economic behavior and keeping legitimate business competition outside litigative bounds.’ ” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159-1160 (Korea Supply).)
To the extent defendants’ motions were based on Morf’s asserted inability to establish a prospective economic relationship with the church, we see no error in the trial court’s rejection of this contention. The tort of intentional inference with prospective economic advantage “does not require interference with a relationship which has ripened into a contract, but merely requires one which has such a potential; it is a question of fact whether the business relationship between [Morf] and [the church] is sufficient to support the tort.” (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg, supra, 216 Cal.App.3d at p. 1153, citing to Buckaloo v. Johnson (1975) 14 Cal.3d 815, 822, 830, fn. 7, disapproved on other grounds in Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393, fn. 5.)
The complaint sufficiently pleaded that “defendants’ acts, in addition to interfering with [Morf’s] business expectancy, were wrongful in and of themselves.” (Korea Supply, supra, 29 Cal.4th at p. 1159.) “The statutory provisions authorizing disciplinary action against persons holding a real estate broker’s license refer to ‘[a]ny other conduct . . . which constitutes [fraud or] dishonest dealing.’ (Bus. & Prof. Code, §§ 10176, subd. (i) and 10177, subd. (j).) [¶] A broker representing a seller may breach his duty of honesty and fair dealing by failing to [fairly] convey a prospective purchaser’s offer to the seller. . . .” (Nguyen v. Scott (1988) 206 Cal.App.3d 725, 736.) The allegation that Kearney, acting on behalf of McLean, “rigged” the bidding process so that McLean’s bid was incorrectly presented as containing the most favorable terms to the seller, and that McLean ratified Kearney’s acts, “clearly allege[] that defendants engaged in unlawful behavior in order to secure the [church property]. [Morf] has, therefore, sufficiently alleged that defendants’ acts, in addition to interfering with [Morf’s] business expectancy, were wrongful in and of themselves.” (Korea Supply, supra, 29 Cal.4th at p. 1159 [plaintiff satisfied independent wrongfulness pleading requirement by alleging that defendants, among other things, engaged in bribery to obtain contract].)
McLean argues that we may treat his motion as seeking judgment on the pleadings and uphold the dismissal because the complaint alleges only that Morf had the ability to purchase the property but does not allege that he would have purchased it, that he had the financing to develop it, or that he ultimately would have made a profit from selling houses constructed on the property. However, even if such pleading defects could be raised at this stage of the proceedings, we would grant Morf the opportunity to file an amended complaint to add the purportedly missing allegations. (See Bostrum v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663-1664.) We therefore decline to affirm on this ground.
Although ultimately concluding that defendants had shown that Morf could not prove any recoverable damages, the trial court correctly recognized that Morf is not limited by Civil Code section 3343 to the recovery of out-of-pocket expenses. Civil Code section 3343 concerns the measure of damages in actions for fraud in the sale, purchase, and exchange of property. It speaks in part of “the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received” (Civ. Code, § 3343, subd. (a)(1)), and refers to the defrauded person having “been induced by reason of the fraud to purchase or otherwise acquire the property in question” (Civ. Code, § 3343, subd. (a)(4)). None of this makes sense when applied to a situation in which no exchange of property occurred and the claim is based upon the intentional interference with an exchange. As explained in the Restatement Second of Torts, section 767, comment c, page 30: “In some circumstances one who is liable to another for intentional interference with economic relations by inducing a third person by fraudulent misrepresentation not to do business with the other may also be liable under other rules of the law of torts. . . . The tort of intentional interference thus overlaps other torts. But it is not coincident with them. One may be subject to liability for intentional interference even when his fraudulent representation is not of such a character as to subject him to liability for the other torts. And, on the other hand, one may be liable for . . . other torts . . . without being liable for intentional interference because of his good faith.” (Italics added.)
Civil Code 3343, subdivision (a) reads: “One defrauded in the purchase, sale or exchange of property is entitled to recover the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received, together with any additional damage arising from the particular transaction, including any of the following: [¶] (1) Amounts actually and reasonably expended in reliance upon the fraud. [¶] (2) An amount which would compensate the defrauded party for loss of use and enjoyment of the property to the extent that any such loss was proximity caused by the fraud. [¶] (3) Where the defrauded party has been induced by reason of the fraud to sell or otherwise part with the property in question, an amount which will compensate him for profits or other gains which might reasonably have been earned by use of the property had he retained it. [¶] (4) Where the defrauded party has been induced by reason of the fraud to purchase or otherwise acquire the property in question, an amount which will compensate him for any loss of profits or other gains which were reasonably anticipated and would have been earned by him from the use or sale of the property had it possessed the characteristics fraudulently attributed to it by the party committing the fraud, provided that lost profits from the use or sale of the property shall be recoverable only if and only to the extent that all of the following apply: [¶] (i) The defrauded party acquired the property for the purpose of using or reselling it for a profit. [¶] (ii) The defrauded party reasonably relied on the fraud in entering into the transaction and in anticipating profits from the subsequent use or sale of the property. [¶] (iii) Any loss of profits for which damages are sought under this paragraph have been proximately caused by the fraud and the defrauded party’s reliance on it.” Subdivision (b) reads: “Nothing in this section shall do either of the following: [¶] (1) Permit the defrauded person to recover any amount measured by the difference between the value of property as represented and the actual value thereof. [¶] (2) Deny to any person having a cause of action for fraud or deceit any legal or equitable remedies to which such person may be entitled.”
Defendants cite numerous cases to support their contention that section 3343 bars the recovery of lost profits by a prospective purchaser of property. (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1167, 1175-1177; Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504; Kenly v. Ukegawa (1993) 16 Cal.App.4th 49, 54-55; Copeland v. Baskin Robbins U.S.A. (2002) 96 Cal.App.4th 1251, 1262-1263; Nguyen v. Scott, supra, 206 Cal.App.3d at p. 740; Vestar Development II v. General Dynamics Corp. (9th Cir. 2001) 249 F.3d 958, 962 & fn. 5].) To the extent that some of the cases address the proper measure of damages, they hold only that lost profits were not recoverable for particular fraudulent representations because the fraud in those cases did not cause the claimed loss of profits. (See Simon v. San Paolo U.S. Holding Co., Inc., supra, 35 Cal.4th at pp. 1175-1176; see also Overgaard v. Johnson (1977) 68 Cal.App.3d 821, 826-828 [negligent misrepresentation by broker to buyer re vineyard acreage, for which buyer recovered from seller purchase price in excess of market value of land conveyed, did not cause seller a loss in the amount by which sales price exceeded market value of the land conveyed].) None of the cases involved claims for intentional interference with a prospective economic advantage and none suggest that such inference may not give rise to recoverable lost profits.
Recognizing the sufficiency of the allegations here will not allow an unsuccessful potential purchaser of real property to “plead around” the limitations of Civil Code section 3343, as defendants suggest. One may recover for the intentional interference with a prospective economic advantage only if he can prove that another person has intentionally engaged in wrongful acts designed to disrupt his relationship with a third party, that the conduct is independently wrongful, and that the conduct was engaged in either with the desire to interfere or with the knowledge that interference was substantially certain to result. (Korea Supply, supra, 29 Cal.4th at pp. 1164-1165.) If these elements are proved, the measure of damages is governed by Civil Code section 3333, which states: “For the breach of an obligation not arising from contract, the measure of damages, . . . is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” “[I]in order to support a lost profit award the evidence must show ‘with reasonable certainty both their occurrence and extent thereof.’ ” (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 907.)
Defendants were entitled to summary judgment only if they submitted evidence sufficient to establish that Morf suffered no compensable damages as a result of their actions or that Morf could not possibly prove that he had incurred such damages. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855.) Unless defendants submitted competent evidence sufficient to establish one of these alternatives, the burden did not shift to Morf to produce evidence that he had suffered compensable damages in order to defeat the summary judgment motion. (See, e.g., Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439 (Weber); Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 81.) While defendants may have raised doubts concerning Morf’s ability to prove damages, they did not submit evidence establishing the impossibility of his doing so.
The California Supreme Court has set forth the law concerning the recovery of lost profits as damages for business torts in Grupe v. Glick (1945) 26 Cal.2d 680, 692-693, as follows: “[W]here the operation of an established business is prevented or interrupted, as by a tort . . ., damages for the loss of prospective profits that otherwise might have been made from its operation are generally recoverable for the reason that their occurrence and extent may be ascertained with reasonable certainty from the past volume of business and other provable data relevant to the probable future sales. [Citations.] On the other hand, where the operation of an unestablished business is prevented or interrupted, damages for prospective profits that might otherwise have been made from its operation are not recoverable for the reason that their occurrence is uncertain, contingent and speculative. [Citations.] . . . But although generally objectionable for the reason that their estimation is conjectural and speculative, anticipated profits dependent upon future events are allowed where their nature and occurrence can be shown by evidence of reasonable reliability. [Citations.] All of these cases recognize and apply the general principle that damages for the loss of prospective profits are recoverable where the evidence makes reasonably certain their occurrence and extent.”
“As the Court of Appeal explained in S.C. Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th 529, 536 . . ., ‘Lost anticipated profits cannot be recovered if it is uncertain whether any profit would have been derived at all from the proposed undertaking. But lost prospective net profits may be recovered if the evidence shows, with reasonable certainty, both their occurrence and extent. [Citation.] It is enough to demonstrate a reasonable probability that profits would have been earned except for the defendant’s conduct. [Citations.]’ . . . [A] plaintiff is ‘not required to establish the amount of its damages with absolute precision and [is] only obliged to demonstrate its loss with reasonable certainty. [Citation.]’ [Citations.] The Restatement of Torts provides in this regard: ‘It is desirable . . . that there be definiteness of proof of the amount of damage as far as is reasonably possible. It is even more desirable . . . that an injured person not be deprived of substantial compensation merely because he cannot prove with complete certainty the extent of harm he has suffered. Particularly is this true in situations . . . where the harm is of such a nature as necessarily to prevent anything approximating accuracy of proof, as when anticipated profits of a business have been prevented.’ (Rest.2d Torts, § 912, com. a., p. 479.)” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 883-884 (Kids’ Universe).)
Morf argues that defendants’ conduct interfered with his established business as a general contractor and real estate developer in which he has been engaged for many years. The construction and sale of each new home is part of a continuing business. Had Morf bought the church property, he may be able to prove that he would have developed the property with homes as he had done many times in the past. Even if the development of the church property is considered as a new venture, “ ‘damages may be established with reasonable certainty with the aid of expert testimony, economic and financial data, market surveys and analyses, business records of similar enterprises, and the like.’ ” (Kids’ Universe, supra, 95 Cal.App.4th at p. 884.) “ ‘When the tortfeasor has prevented the beginning of a new business . . . all factors relevant to the likelihood of the success or lack of success of the business or transaction that are reasonably provable are to be considered, including general business conditions and the degree of success of similar enterprises.’ ” (Ibid.)
Defendants sought to meet their evidentiary burden by relying on Morf’s response to Interrogatory 9.1 and excerpts from Morf’s deposition testimony. However, “[a] motion for summary judgment is not a mechanism for rewarding limited discovery; it is a mechanism allowing the early disposition of cases where there is no reason to believe that a party will be able to prove its case.” (Weber, supra, 143 Cal.App.4th at p. 1442.) Neither defendant’s response to Interrogatory 9.1 nor the deposition excerpts make even a prima facie showing that Morf will be unable to establish to the requisite certainty his claim for lost profits.
Morf’s response to Interrogatory 9.1 listed his damages as requested by the question. Defendants did not submit Morf’s “Project Pro Forma,” which was identified in response to the next interrogatory and which presumably asked Morf to identify documents supporting the existence or amount of those damages. Hence, we are unable to consider McLean’s argument that Morf provided no foundation for the figures set forth in his pro forma document. In all events, the response does not cast doubt on Morf’s ability to provide the necessary foundation. His response regarding documents does not disclaim the ability to provide support for his numbers. If defendants thought Morf’s response was insufficient because the pro forma document did not show how he calculated his damages, their remedy was to serve a supplemental interrogatory asking for his calculations. (Code Civ. Proc., §§ 2030.300(a)(1), 2031.310(a)(1).) “[W]hile a defendant’s summary judgment motion can consist of factually devoid discovery responses from which an absence of evidence can be inferred [citation], ‘we can infer nothing at all with respect to questions which were neither asked nor answered.’ ” (Weber, supra, 143 Cal.App.4th at p. 1439.)
See footnote 3, ante.
Similarly, the deposition excerpts do not show that Morf was ever questioned concerning his calculation of lost profits on the proposed development of the church property, or concerning his profits and losses on other similar development projects. Morf’s testimony concerning the uncertainty of real estate transactions does not show that at trial he will be unable to produce the necessary economic and financial data, market surveys and analyses, and business records of similar projects, to establish that he would have been able to profitably develop the church property. Also, Morf’s testimony that he spoke with subcontractors regarding costs for demolition and site improvements “just to get some rough ideas” before he formulated his purchase offer does not call into question his ability to produce at trial competent evidence of projected development costs. Contrary to defendants’ premise, “not every discovery response which does not further the adversary’s case will suffice in and of itself to show that the case ‘cannot be established.’ ” (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 187.)
McLean asserts in his brief that the basis for Morf’s damages stated in Interrogatory 9.1 came from the pro forma analysis that Morf prepared to formulate his purchase offer and about which he was questioned at his deposition. However, the deposition excerpts in McLean’s motion papers concern Morf’s discussions with consultants regarding his investigation of the property before he submitted his purchase offer. The excerpts do not indicate that the pro forma document that is referred to during that questioning was the same pro forma analysis, without change, that Morf referred to in his response to Interrogatory 9.1 and that was submitted in response to Interrogatory 9.2.
This case is factually distinguishable from Kids’ Universe, supra, 95 Cal.App.4th 870. In that case, plaintiffs sued their neighbors for negligently causing a flood in 1997 that extensively damaged plaintiffs’ retail store. (Id. at p. 874.) Defendants, through their insurers, paid plaintiffs $200,000 for damage to the store. (Ibid.) Plaintiffs also contended that the flood had prevented them from launching a new Web site for an on-line business at an optimal time in the marketplace and they sought to recover their anticipated lost profits from that new venture. (Id. at p. 877.) In upholding summary judgment dismissing the claim for lost profits, the Court of Appeal found that defendants had met their burden as moving parties by producing plaintiffs’ responses to interrogatories that showed that plaintiffs had not operated their previous Web site as a profit-producing venture, that plaintiffs had no line of credit available in 1997 and 1998, and that there were no commitments to invest in the company from 1995 to 2000. This “was affirmative evidence” presented by defendants in support of their summary judgment motion to show plaintiffs would be unable to establish the only damage element of their negligence cause of action, i.e., lost profits. (Id. at pp. 882, 887-888.) In the present case, in contrast, defendants failed to submit similar affirmative evidence sufficient to show that in the past Morf had no profitable development projects and that he would have been unable to profitably develop the church property.
Because defendants failed to meet their burden of showing that Morf could not produce evidence to establish that he suffered compensable damages, the burden never shifted to Morf to come forward with such evidence and summary judgment should not have been granted because of his failure to do so. In light of this determination, we need not address defendants’ challenges to the sufficiency of Morf’s opposition.
We shall reverse the grant of summary judgment because the trial court’s ruling was erroneous with respect to the cause of action for intentional interference with a prospective economic advantage. Our reversal revives all causes of action, but we express no opinion concerning defendants’ right to summary adjudication of any other cause of action. Nor should our decision be read as an expression of the ultimate merit of any of Morf’s claims. We hold only that defendants failed to produce affirmative evidence that Morf will be unable to prove that their conduct caused him to sustain damages that are recoverable under his cause of action for intentional interference with a prospective economic advantage.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings. Plaintiff is awarded costs on this appeal.
We concur: McGuiness, P. J., Siggins, J.