Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PC033882 Barbara M. Scheper, Judge.
Harrington, Foxx, Dubrow & Canter, David E. Bower and Ryan Schneider, for Plaintiff and Appellant.
McGarrigle, Kenney & Zampiello, Patrick C. McGarrigle, Michael J. Kenney and Kathryn Marshall, for Defendant and Respondent Grubb & Ellis Company.
Robert L. Esensten for Defendants and Respondents Martin B. Cohan and Joshua L. Levy.
ARMSTRONG, J.
Plaintiff and appellant Noeman Samuels sued real estate brokerage firm Grubb & Ellis and two of its individual brokers, Martin B. Cohan and Joshua L. Levy, for breach of fiduciary duty and related causes of action in connection with his unsuccessful attempts to purchase certain commercial real property. The trial court granted summary judgment to defendants based on a finding that Samuels could not establish that defendants' breach of duty caused him harm. Finding no error, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
In early 2001, Samuels met with Cohan and Levy of Grubb & Ellis, the listing agent for a retail shopping center in Santa Clarita known as Canyon Center (the "Property") owned by interests owned or controlled by Ira Forest. Samuels orally agreed to use Grubb & Ellis as his agent after he was told that the broker would not share its commission with Samuels's agent.
After about a year's unsuccessful negotiation, in early 2002 Samuels entered into a partnership with two brothers, Faramarz and Sohrab Shakib (the "Shakibs"), to make an offer to purchase the Property. On or about March 13, 2002, Grubb & Ellis prepared a letter of intent on behalf of the Partnership, whereby the Partnership agreed that entities controlled by Samuels and the Shakibs would purchase the Property for $18,150,000, and would deposit $500,000 into escrow. The Partnership submitted several offers to Forest on substantially the same terms as the letter of intent. The offers were not accepted.
Samuels and the Shakibs agreed that, "either individually or through entities they controlled, would each acquire 50% interest in the Property, that they would make equal capital contributions, and that they would share equally the Partnership's expenses, income and profits."
On June 19, 2002, Samuels and the Shakibs terminated the Partnership and entered into an oral agreement in which Samuels agreed to pay the Shakibs $100,000 in return for their promise to step aside from the negotiations in order to permit Samuels to purchase the Property on his own account.
Samuels immediately notified Grubb & Ellis of the Shakibs' agreement to step aside. Samuels continued working with defendants to come to terms with Forest for the purchase of the Property. On June 21, 2002, in response to Forest's concerns regarding Samuels's financial condition, Samuels faxed financial documents to defendants to establish his ability to complete the purchase; Samuels maintained that defendants failed to transmit these financial documents to Forest, with the result that he continued to question Samuels's financial wherewithal to close the transaction.
On June 24, 2002, at Forest's request, defendants prepared and presented to Samuels and the Shakibs an identical document, in the form of a purchase agreement, which contained the terms upon which Forest would sell the Property (the "Seller's Proposal"). Defendants did not inform Samuels that this document was being presented to both him and the Shakibs. Rather than accept the Seller's Proposal as presented (presumably by executing the purchase agreement), on June 25, 2002, Samuels, with the help of his lawyer, responded with proposed changes to the Seller's Proposal. The Shakibs, however, agreed to the Seller's Proposal as presented, and Forest ultimately sold the property to the Shakibs on the terms contained in the Seller's Proposal. On June 26, 2002, Grubb & Ellis informed Samuels that Forest was no longer interested in negotiating with him or in selling the Property to him.
On July 9, 2002, after receiving a package from Commerce Escrow, Samuels learned that, on or about June 25, 2005, Forest and the Shakibs had entered into an agreement for the purchase of the Property at the purchase price of $18,150,000, the same amount offered by Samuels.
On November 28, 2005, Samuels sued defendants for breach of fiduciary duty, constructive fraud, intentional and negligent interference with prospective economic advantage, breach of contract and breach of the implied covenant of good faith and fair dealing.
Samuels had earlier sued the Shakibs for partnership dissolution, an accounting, imposition of a constructive trust, appointment of a receiver, and breach of fiduciary duty. He subsequently amended that complaint to include a cause of action against Forest for intentional interference with prospective economic advantage in connection with the "step aside" agreement between Samuels and the Shakibs. As to this cause of action, we affirmed the trial court's ruling that the lawsuit against Forest was time-barred. (Samuels v. Forest (B192234, filed October 30, 2007).) Pursuant to the request of Cohan and Levy, we take judicial notice of that opinion.
On or about October 25, 2006, Grubb & Ellis, as well as individual defendants Cohan and Levy, filed their respective motions for summary judgment and/or summary adjudication. Those motions were based principally on the assertion that Samuels could not prevail in his lawsuit because he had no evidence with which to establish the elements of causation and damages. This assertion, in turn, was based on the proposition that Forest would not have sold the Property to Samuels even in the absence of any breach of duty by the brokers. In support of this position, defendants presented the declaration of Forest, which stated: "After reviewing his purchase offer and meeting with and discussing the purchase offer with Mr. Samuels, I decided that I did not want to and would not sell to Mr. Samuels based on my opinion and experience and evaluation of him as a prospective purchaser, and my conclusion that Mr. Samuels did not appear to be reliable. I had no confidence in him as a prospective purchaser and/or manager of a shopping center. I did not believe, based on my opinion and experience and my evaluation of him, that he was capable of closing the purchase of the Canyon Center and, later, managing the Canyon Center which I had spent twenty years of my life building up."
Samuels opposed the summary judgment based on his allegation that defendants had not transmitted to Forest financial documentation which would have addressed the seller's concerns regarding Samuels's financial ability to close the deal. Forest stated in his declaration that "even if I had received these documents that the plaintiff's claims were withheld, I would not have sold the property to Mr. Samuels." In his earlier deposition, however, Forest's testimony was more equivocal: "Well, I would have entertained an offer."
At the hearing on the summary judgment motion, there was extensive discussion about the state of the evidence. The court requested additional briefing to clarify several points. Specifically, the court requested a timeline of the transaction from the time that the partnership was dissolved on June 19 until Forest and the Shakibs entered into a purchase agreement; the evidence regarding whether defendants transmitted to Forest Samuels's response to the Seller's Proposal, marked with Samuels's proposed changes; and the evidence regarding whether defendants transmitted to Forest Samuels's augmented financial documentation.
At the continued hearing on summary judgment, the court and parties confirmed the state of the evidence as outlined above. The court noted that there was no evidence in the record that defendants had submitted Samuels's June 25, 2002 counterproposal to Forest. Without that evidence, and in light of Forest's presentation of the Seller's Proposal to Samuels, and his equivocal deposition testimony about considering all offers, the court ruled that there was a disputed issue of fact regarding whether Forest would have accepted Samuels's offer had it been submitted to him.
Grubb & Ellis brought a new motion for summary judgment, and Cohan and Levy renewed their earlier motion. These motions were based upon the "newly discovered evidence" of a fax transmittal sheet and accompanying document demonstrating that Samuels's June 25, 2002 counterproposal had indeed been presented to Forest. Based on the now undisputed fact that Forest had received and rejected Samuels's latest offer, the trial court granted the motions and entered judgment for defendants.
Samuels challenges the entry of judgment, both on procedural grounds and on the merits. First, he maintains that the second summary judgment motion was not based on "newly discovered evidence" as required by Code of Civil Procedure section 1008, subdivision (b), and was therefore improperly granted. Secondly, Samuels argues that his damage claim consisted of more than his inability to purchase the Property. Consequently, he argues, the trial court erred in granting summary judgment based on a lack of damages.
DISCUSSION
On an appeal from a grant of summary judgment, we examine the record de novo to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1245-1246.) We view the evidence in a light favorable to, and resolve any evidentiary doubts or ambiguities in favor of, the non-moving party. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at pp. 768-769.) The moving party bears the burden to demonstrate "that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) If the moving party makes a prima facie showing, the burden shifts to the party opposing summary judgment "to make [its own] prima facie showing of the existence of a triable issue of material fact." (Ibid.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Ibid., fn. Omitted.)
1. Second motion for summary judgment
Samuels argues that the trial court improperly reconsidered its ruling on defendants' motion for summary judgment, in violation of Code of Civil Procedure section 1008, subdivision (b). That statute reads, in part: "A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law,..." As Samuels explains, "The legislative intent behind Code of Civil Procedure § 1008 is to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Mink v. Sup.Ct. (Arnel Develop. Co., Inc.) (1992) 2 Cal.App.4th 1338, 1342; Baldwin v. Home Sav. Of America (1997) 59 Cal.App.4th 1192, 1198.)" Samuels argues that "there was nothing new about any evidence presented to the court in the 'renewed' motion," as the June 25, 2002 fax from defendants to Forest "had been produced in discovery by the very parties that now claim it was 'newly discovered.'"
This argument overlooks the fact that the trial court had indicated that it would agree with defendants that there was no disputed issue of fact necessitating trial but for the absence of evidence that defendants presented Samuels's response to the Seller's Proposal to Forest. When that evidence was produced – and in fact Samuels acknowledged that defendants forwarded his counterproposal to Forest – then according to the trial court's analysis, there was no purpose to be served by a trial. If the trial court's analysis was faulty, Samuels has the opportunity to correct the error on this appeal. If the trial court's analysis was sound, Samuels is benefited, rather than harmed, by entry of judgment before, instead of after, a lengthy and expensive trial.
2. No evidence that defendants' breach of duty caused Samuels damage
Samuels's complaint alleges that defendants represented three parties in a real estate transaction, the seller and two competing prospective buyers. Samuels neither knew nor consented to defendants' representation of the Shakibs as individuals subsequent to the dissolution of the partnership, a clear violation of the agent's duty of loyalty. Moreover, defendants withheld material information from Samuels with respect to his negotiations with Forest, to wit: that Forest had instructed defendants to present the Seller's Proposal to both Samuels and the Shakibs. This alleged conduct, if true, constitutes a breach by defendants of their fiduciary duties to Samuels.
However, the trial court granted defendants summary judgment not because Samuels could not establish a breach of duty, but because it concluded that there was no evidence, disputed or undisputed, that defendants' breach caused Samuels any damage. As our Supreme Court recently confirmed in Viner v. Sweet (2003) 30 Cal.4th 1232, 1239, "the plaintiff must prove that, but for the alleged [tortious conduct], the harm would not have happened."
Samuels alleged that he was harmed by defendants' conduct because he was not able to purchase the Property. Thus, in order to prove damages, he must first establish that, but for defendants' breach, he would have acquired the Property. However, the undisputed evidence established that Samuels could not have acquired the Property, regardless of defendants' conduct, because Forest, the seller, had determined that he would not sell to Samuels.
The trial court ruled on the summary judgment motion entirely on the basis of an absence of evidence that Samuels was damaged as a result of defendants' alleged breach of duty. Yet in a 42 page appellate brief, Samuels devotes the following single paragraph to the issue: "Because [defendants] breached their undivided duty of loyalty to Samuels in so many ways, Samuels was unable to purchase Canyon Center, and suffered economic damages as a result. [Defendants'] actions also resulted in Samuels suffering extensive damages separate and apart from his inability to purchase Canyon Center, including, but not limited to: (1) adverse tax consequences attributable to Samuels' inability to file a 26 U.S.C. § 1031 exchange; (2) monies lost in connection with the property Samuels purchased instead of Canyon Center; (3) the appreciation in value of Samuels' Harold Way property, which he sold in order to purchase Canyon Center; and (4) monies expended on consultants to perform his due diligence with respect to Canyon Center." With the exception of this last item, all of these alleged damages were incurred solely as a result of Samuels's failure to purchase the Property. As we explain above, the record contains no evidence that defendants' breach of duty was the cause of Samuels's inability to purchase the Property. As to payments to consultants for due diligence reviews of the Property's operations, these fees were not the result of any breach of duty by defendants, but would have been incurred whether or not Samuels's negotiations with Forest were ultimately successful.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.