FSR Brokerage, Inc. v. Superior Court

Citation41 Cal.Rptr.2d 404,35 Cal.App.4th 69
Decision Date25 May 1995
Docket NumberNo. B088501,B088501
CourtCalifornia Court of Appeals
PartiesFSR BROKERAGE, INC. etc., et al., Petitioners, v. LOS ANGELES SUPERIOR COURT, Respondent; Maritza BLANCO et al., Real Parties in Interest.

Gascou, Gemmill & Thornton, Bruce M. Thornton, Carlos V. Yguico, Los Angeles, and Dickson, Carlson & Campillo, Roxanne M. Wilson, Karen S. Bril, Santa Monica, for petitioners.

No appearance on behalf of respondent.

Fogel, Feldman, Ostrov, Ringler & Klevens, Larry R. Feldman, Lester G. Ostrov, Richard L. Rosett, Santa Monica, for real parties in interest.

TURNER, Presiding Justice.

Defendants, FSR Brokerage, Inc., doing business as Fred Sands Realtors (Sands), Prichett Realty Corp. (Prichett), and Gary Marquis, seek a writ of mandate to compel the respondent court to enter summary judgment on consolidated personal injury and wrongful death complaints of 36 plaintiffs. The consolidated complaints were filed as a result of the collapse of a balcony on an oceanfront residence in Malibu on November 15, 1992. Based on the facts set forth in the parties' papers, the aforementioned defendants, realtors who were involved in the sale of the oceanfront residence where the tragic collapse occurred, are entitled to summary judgment because they owe no legal duty to any of the injured parties. Further, we conclude the trial court abused its discretion when it denied the motion pursuant to Code of Civil Procedure section 437c, subdivision (h) 1 so as to permit additional use of the discovery process.

The present case involves 29 consolidated actions. The earliest original complaint was filed on December 10, 1992. The last complaint was filed on October 28, 1993. On July 25, 1994, Sands moved for summary judgment. The evidence cited to in its separate statement indicated the following: on November 13, 1992, Sands had acted as the brokers for the seller of the beachfront residence where the collapse occurred; the property was sold by various sellers to Massoud Sarshar; none of the plaintiffs or their heirs were a seller, buyer, or prospective purchaser of the residence where the tragedy occurred; and no plaintiff or their heirs were in "contractual privity with [Sands] or any owner, seller, buyer, or prospective purchaser of the property." Prichett and Mr. Marquis filed a joinder in the Sands summary judgment motion. Although no separate statement was filed, 2 a declaration was submitted which indicated: Prichett and Mr. Marquis were also brokers in connection with the sale of the residence; none of the plaintiffs were a seller, buyer, or prospective purchaser of the property; no plaintiff or heir had alleged he and she would receive any economic benefit from the sale of the property; and no plaintiff or heir was in contractual privity with Prichett or Mr. Marquis. None of the evidence presented by plaintiffs indicated they or the decedents had any contractual or other relationship with Sands, Prichett, or Mr. Marquis. Rather, all of the persons injured or killed were attending the party at residence when the balcony fell--they had no contact with the brokers, Sands, Prichett, or Mr. Marquis.

Plaintiffs opposed the summary judgment motion and joinder on two grounds. To begin with, plaintiffs argued that a duty existed on the part of Sands, Prichett, and Mr. Marquis to the partygoers to advise the purchaser of the premises of the defective beam. However, no evidence was presented by plaintiffs to controvert the factual showings made by defendants. Second, they argued the motion was premature pursuant to section 437c, subdivision (h).

The respondent court denied the summary judgment motion. The respondent court found there was a triable issue as to whether Sands, Prichett, and Mr. Marquis should have known that Mr. Sarshar, the prospective purchaser, would have a party on the premises where guests would congregate on the defective balcony in such numbers it would fall. Also, the respondent court concluded that the motion was premature because further discovery proceedings were necessitated. In their writ petitions, Sands, Prichett, and Marquis argue they owed no duty to the injured partygoers and the summary judgment motions were not premature. We review the respondent court's determination on the merits of the duty issue de novo. (Daniels v. DeSimone (1993) 13 Cal.App.4th 600, 606-607, 16 Cal.Rptr.2d 615; Wilson v. Blue Cross of So. California (1990) 222 Cal.App.3d 660, 670, 271 Cal.Rptr. 876.) Further, Sands, Prichett, and Mr. Marquis contend that the respondent court erroneously determined the motion was premature pursuant to section 437c, subdivision (h). We review the determination as to whether the summary judgment motions should have been denied because they were premature in that discovery proceedings should have been permitted to be commenced, utilizing the abuse of discretion standard. (People ex rel. Dept. of Transportation v. Outdoor Media Group (1993) 13 Cal.App.4th 1067, 1077, 17 Cal.Rptr.2d 19; Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119, 127, 225 Cal.Rptr. 359.) Utilizing the applicable standards of review, we respectfully disagree with the respondents court's determinations on the merits and whether the motions should have been denied so as to allow the use of discovery tools. We therefore direct that summary judgment be entered.

As to the first basis for the respondent court's ruling, viz., there was a triable issue as to whether Sands, Prichett, and Mr. Marquis knew or should have known of the defects in the balcony, we disagree that such an issue is a basis for denying summary judgment. Rather, because Sands, Prichett, and Mr. Marquis owed no duty to the partygoers with whom no broker-customer relationship existed, summary judgment was warranted. (Civ.Code, § 2079 3; Lincoln Alameda Creek v. Cooper Industries, Inc. (N.D.Cal.1992) 829 F.Supp. 325, 328-329; see Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 392-393, 396-397, 11 Cal.Rptr.2d 51, 834 P.2d 745; Smith v. Rickard (1988) 205 Cal.App.3d 1354, 1360, 254 Cal.Rptr. 633.) As suppliers of information in a commercial context, the duty of Sands, Prichett, and Mr. Marquis only extended to " 'intended beneficiaries' " of the brokers' advice. (Bily v. Arthur Young & Co., supra, 3 Cal.4th at p. 410, 11 Cal.Rptr.2d 51, 834 P.2d 745.) In Bily, our Supreme Court noted, in a case involving accountant liability and negligent misrepresentation, that a duty existed only to a group of individuals to which representations were made " 'with the intent to induce plaintiff, or a particular class of persons to which plaintiff belongs, to act in reliance upon the representation in a specific transaction, or a specific type of transaction, that defendant intended to influence.' " (Id. at p. 414, 11 Cal.Rptr.2d 51, 834 P.2d 745.) In the present case, plaintiffs allege the brokers negligently failed to supply information to the purchaser of the premises concerning defects in the balcony. However, plaintiffs were all partygoers on the premises who had no relationship with the brokers. Plaintiffs cannot be classified as intended beneficiaries of the purportedly defective information supplied by defendants. The foregoing showing made by defendants in connection with defendants' summary judgment motion, was sufficient to shift the burden of proof to plaintiffs. (§ 437c, subd. (o )(2); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 37 Cal.Rptr.2d 653; Jambazian v. Borden (1994) 25 Cal.App.4th 836, 846, 30 Cal.Rptr.2d 768.) 4 Plaintiffs presented no evidence they were intended beneficiaries of the allegedly negligently supplied information concerning the defect. Hence, because plaintiffs failed to sustain their burden of proof imposed upon them given the evidentiary showing of Sands, Prichett, and Mr. Marquis and pursuant to section 437c, subdivision (o ), the respondent court had a duty to grant the summary judgment motion.

Additionally, the respondent court denied the motion because it was premature pursuant to section 437c, subdivision (h). The declaration relied upon by plaintiffs indicated that: plaintiffs needed additional time "to conduct discovery"; the property had been inspected by Sands, Prichett, and Mr. Marquis; a structural engineer had warned the brokers of defects in the steel beams under the balcony; there were issues of agency and constructive knowledge that needed "to be fleshed out and determined through the various discovery tools available"; the case was "only in the infancy of discovery"; a "variety of interrogatories and documents requests [had] been propounded"; no depositions had been taken; and defendants were seeking to use summary judgment "as a means to escape liability at an extremely early stage of [the] litigation." However, the foregoing declaration was insufficient to prove, pursuant to section 437c, subdivision (h), "that facts essential to justify opposition may exist but cannot ... then be presented...." None of the facts which purportedly would be the subject of future discovery related to the issue of whether a duty existed. None of the discovery would relate to any relationship between plaintiffs and the brokers. Further, there was no reasonable basis for concluding that the facts essential to justify opposition could not be presented. The oldest of the consolidated actions was filed on December 10, 1992. The summary judgment motion was heard in the present case on October 14, 1994. There was an abundance of time between December 10, 1992, and the summary judgment hearing date in which to secure evidence pertinent to the duty issue. The newest lawsuit was filed on October 28, 1993, 11 months and 2 weeks prior to the summary judgment motion hearing. As in connection with the first case filed, the last case is one in which some discovery devices could have been propounded. Accordingly, none of...

To continue reading

Request your trial
120 cases
  • Knapp v. Doherty, H026670.
    • United States
    • California Court of Appeals
    • September 20, 2004
    ...may exist but cannot, for reasons stated, then be presented." (Code Civ. Proc., § 437c, subd. (h); FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 76, 41 Cal.Rptr.2d 404.) Third, the application presented "no justification for the failure to have commenced the use of appropr......
  • Brantley v. Pisaro
    • United States
    • California Court of Appeals
    • February 29, 1996
    ...674.) 9 Our conclusion is implicitly confirmed by several recent California appellate opinions. In FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 73, 41 Cal.Rptr.2d 404, a personal injury and wrongful death action, the appellate court did not identify the nature of the evid......
  • Grogan v. Uggla
    • United States
    • Supreme Court of Tennessee
    • November 21, 2017
    ...Co. v. Superior Court , 117 Cal.App.4th 158, 11 Cal.Rptr.3d 564 (2004) ; FSR Brokerage, Inc. v. Superior Court. , 35 Cal.App.4th 69, 41 Cal.Rptr.2d 404 (1995). None of these cases discuss Section 324A, and none reject the Section 324A framework in favor of Section 552. In fact, California's......
  • Aguilar v. Atlantic Richfield Corp.
    • United States
    • California Court of Appeals
    • January 31, 2000
    ...the pleadings to which defendants' motion is directed, a triable issue of material fact exists:50 (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal. App.4th 69, 73-74, 41 Cal.Rptr.2d 404.) In assessing whether summary judgment is appropriate, the facts submitted by the party opposing sum......
  • Request a trial to view additional results
1 books & journal articles
  • Real estate broker, escrow agent and notary liability
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • March 31, 2022
    ...the property. Bily v. Arthur Young & Co. , 3 Cal. 4th 370, 415, 11 Cal. Rptr. 2d 51 (1992); FSR Brokerage, Inc. v. Superior Court, 35 Cal. App. 4th 69, 73, 41 Cal. Rptr. 2d 404, 406-07 (1995); CACI 1906. §1:23 Broker’s Knowledge To be liable, the broker must have actual or constructive know......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT