Clymer v. Pickford Realty, Ltd., D051032 (Cal. App. 10/24/2008), D051032

• Decision Date: 24 October 2008
• Docket Number: D051032
• Parties: DANA CLYMER et al., Plaintiffs and Appellants, v. PICKFORD REALTY, LTD. et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

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DANA CLYMER et al., Plaintiffs and Appellants, v. PICKFORD REALTY, LTD. et al., Defendants and Respondents.

D051032

Court of Appeals of California, Fourth Appellate District, Division One

October 24, 2008

Not to be Published

Appeal from a judgment of the Superior Court of San Diego County, No. GIN44219, Thomas P. Nugent, Judge. Affirmed.

McDONALD, J.

Plaintiff Dana Clymer wished to purchase a residence (Property) from a husband and wife (the Champagnes) then embroiled in a divorce. After Clymer was unsuccessful in acquiring the Property, she (along with her real estate broker, plaintiff Home Plus Realty, hereafter HPR) filed a lawsuit against the Champagnes alleging breach of contract. Clymer and HPR (together Buyers) also pleaded causes of action against the Champagnes' realtors, defendant Pickford Realty (the realtor with whom the Champagnes listed the Property for sale) and defendant Janet Lawless (the real estate agent associated with Pickford Realty), alleging a cause of action for tortious interference with contractual relations and a series of claims sounding in fraud.

Pickford Realty and Lawless (together Realtors) moved for summary judgment. Realtors asserted that summary judgment on the claim for tortious interference with contractual relations was proper because (1) there was no valid and enforceable contract between Clymer and the Champagnes to sell the Property to Clymer, and (2) there was no evidence any intentional conduct by Realtors caused the Champagnes to breach the contract. Realtors also asserted summary judgment was proper on the various fraud claims because, among other reasons, there was no evidence the misrepresentations pleaded by Buyers were made, or were false representations of fact, or were relied on by Buyers to alter their position.

The trial court found no triable issue of material fact existed as to Buyers' claims against Realtors, and entered summary judgment in favor of Realtors. On appeal, Buyers assert the court erred in finding no triable issues of fact.

I RELEVANT UNDISPUTED FACTS

A. The Property

In August 2004 the Champagnes acquired title to the Property. The husband (Richard) purchased the Property without informing his wife (Ann) or obtaining her consent to the purchase.¹ By November 2004 Ann had filed for divorce. Her lawyer described the marital dissolution proceedings as "extremely contentious."

B. The Listing and Initial Offer

In January 2005 as part of the marital dissolution proceedings, the Champagnes signed a listing agreement with Realtors. The Property was listed for sale with a price between $ 3 and $3.5 million.

Some time in early March, Clymer saw the Property listed on the Multiple Listing Service (MLS). She contacted Realtors to make an appointment to view the Property and, during the next week or two, visited the Property. Either prior to or during her initial visit, Clymer was told by Realtors that the Champagnes were in the midst of a divorce proceeding.

On March 10, HPR (acting as Clymer's agent) submitted to Realtors an offer by Clymer to purchase the Property. The offer price was $2.4 million. Lawless forwarded the offer to Richard and to Ann's attorney. They did not sign an acceptance or return the offer before it expired.

C. The Initial Counteroffers

Richard directed Lawless to respond to Clymer with a counteroffer (Counteroffer No. 1). On March 11, 2005, Lawless faxed Counteroffer No. 1 (signed only by Richard and accompanied by a fax cover sheet and memorandum) to Clymer's agent, HPR. The fax cover sheet stated, "ATTACHED IS [COUNTEROFFER NO. 1] + ACCOMPANYING MEMO RELATING TO [ANN'S] SIGNATURE REQUIREMENT +/ OR THE PRESIDING COURT'S AUTHORIZATION." The accompanying memo stated, in part, that "[t]he purpose of this memo is to inform [Buyer] that [Richard] has instructed me to prepare and submit the following [Counteroffer No. 1] . . . . [¶] The information contained herein is subject to the approval and written authorization of [Ann] and/or the presiding court in the matter of the divorce proceeding between [Richard and Ann]." Later that day, Lawless faxed to HPR "[Counteroffer No.] 1A," which advised Clymer that it "replaces [Counteroffer No.] 1 & Memo." Counteroffer No. 1A (again signed only by Richard) and the accompanying memo were essentially identical to Counteroffer No. 1 except that Counteroffer No. 1A added, as an express term within the body of the counteroffer, that "[f]inal [a]cceptance of this counter offer is subject to written approval of [Ann] or court order." Clymer did not accept either Counteroffer No. 1 or Counteroffer No. 1A.

D. Counteroffer No. 1B

The final counteroffer was transmitted by Lawless to Buyers by fax on March 17. That counteroffer (Counteroffer No. 1B), again signed only by Richard, provided that Richard accepted the original offer price ($2.4 million) subject to certain conditions, but specified it would expire and be deemed revoked unless the offer was signed by Clymer and a copy of the signed Counteroffer No. 1B was personally received by the Realtors not later than March 18, 2005, at 2:00 p.m. Although Clymer signed Counteroffer No. 1B, and denoted that her signature was affixed at 2:00 p.m. on March 18, the fax transmittal line sending the acceptance from HPR's fax machine showed it was sent to Lawless's fax number nearly three hours after the 2:00 p.m. deadline.²

Buyers' complaint alleged Clymer's unconditional acceptance of Counteroffer No. 1B created the contract entitling Clymer to acquire the Property. However, Ann did not sign Counteroffer No. 1B, and Counteroffer No. 1B did not contain any suggestion that Richard signed Ann's name to Counteroffer No. 1B under a power of attorney.³

E. Subsequent Events

Some time on March 18, at HPR's request, Lawless contacted an escrow company, Chicago Title Company (Chicago Title), and asked it to open a file in anticipation that a contract for sale of the Property would be forthcoming. However, by 4:00 p.m. that afternoon, Lawless had advised Chicago Title to take no further action toward opening an escrow because the proposed transaction was "on hold."⁴ After Lawless learned Ann would not sign the contract, she notified Chicago Title on March 22 that the deal was "dead" and no escrow would be required, and Chicago Title closed the file without ever issuing escrow instructions.

On the afternoon of March 21, Lawless informed Buyers that Ann was unwilling to sell the Property to Clymer at the $2.4 million price, and Buyers informed Lawless that Clymer would not pay more than $2.4 million.⁵ That afternoon, the Property's status on the MLS was changed from pending to active, signifying the Property was available for sale.⁶ Within two days, Buyers hired attorneys who demanded that the Champagnes sell the Property on the terms contained in the counteroffer Clymer purported to accept on March 18. After additional communications between the parties over the ensuing seven weeks failed to resolve their dispute,⁷ Buyers filed the present lawsuit. The Property was ultimately sold to a different buyer in May 2005.

II PROCEDURAL BACKGROUND

A. The Lawsuit

Buyers' complaint pleaded claims against the Champagnes for breach of contract, alleging Richard signed Counteroffer No. 1B for himself and also signed for Ann under the authority of a July 22, 2004, Power of Attorney. Buyers alleged Clymer's timely and unconditional March 18, 2005, acceptance of Counteroffer No. 1B therefore created an enforceable contract to acquire the Property or, alternatively, that a contract was formed when she accepted the Champagnes' April 21 offer. The complaint sought damages from the Champagnes for breach of that contract.

Buyers' complaint alleged one claim focused solely on Realtors. That cause of action, styled as a claim for tortious interference with contractual relations, alleged Clymer and the Champagnes had entered into a contract for the purchase and sale of the Property, Realtors were aware of the contract, and Realtors' actions interfered with Clymer's ability to purchase the Property.

Buyers also pleaded claims against all parties, including Realtors, for intentional misrepresentation, negligent misrepresentation, and concealment. Insofar as the complaint alleged Realtors engaged in misrepresentations or concealments,⁸ the complaint alleged (1) on March 21 Lawless made verbal misrepresentations that she had personally been instructed by the judge in the divorce proceeding to obtain a higher price for the Property; (2) on March 21 Lawless had personally instructed Chicago Title to cancel the escrow; and (3) on March 21, March 23, March 28, and May 2, Realtors made entries on the MLS that misrepresented the sales status of the Property.

B. The Summary Judgment Motion

Realtors' motion for summary judgment asserted there was no triable issue of fact on Buyers' claim for tortious interference with contractual relations. Realtors argued the pleaded claim required proof that a valid contract existed between Clymer and the Champagnes, Realtors were aware of the contract and intended to induce its breach, and Realtors' wrongful conduct caused the Champagnes to breach the contract. Realtors asserted that no valid or enforceable contract was created and therefore an essential element of the claim could not be established. Realtors also asserted there was no triable issue of fact on whether Realtors' wrongful acts caused the Champagnes to breach the contract, because the only alleged wrongful conduct was that Realtors contacted Chicago Title to cancel the escrow and thereafter restored the Property to active status in the MLS. Realtors asserted the undisputed evidence showed their conduct followed Ann's decision not to sign Counteroffer No. 1B, and did not cause a breach of a valid contract.

Realtors asserted that summary judgment was proper on the fraud-based claims because the representations attributed to Realtors were either true or, alternatively, did...