Park v. First Am. Title Co.

• Decision Date: 23 November 2011
• Docket Number: No. G044118.,G044118.
• Citation: 136 Cal.Rptr.3d 684,2011 Daily Journal D.A.R. 17967,201 Cal.App.4th 1418
• Parties: WON SHIL PARK, Plaintiff and Appellant, v. FIRST AMERICAN TITLE COMPANY, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

201 Cal.App.4th 1418

136 Cal.Rptr.3d 684

2011 Daily Journal D.A.R. 17,967

WON SHIL PARK, Plaintiff and Appellant,

v.FIRST AMERICAN TITLE COMPANY, Defendant and Respondent.

No. G044118.

Court of Appeal, Fourth District, Division 3, California.

Nov. 23, 2011.

David D. Kim & Associates, Los Angeles, David D. Kim and Mark M. Higuchi for Plaintiff and Appellant.

Garrett & Tully, Pasadena, Ryan C. Squire and Anna Didak for Defendant and Respondent.

OPINION

FYBEL, J.

Introduction

Won Shil Park sued First American Title Company (First American) for mishandling the preparation of a deed of trust on a property Park sold. First American's motion for summary judgment was granted on the ground Park could not prove damages.

Park's opposition to the motion did not raise a triable issue of material fact. The trial court did not err in sustaining certain evidentiary objections or in denying Park's request to continue the hearing on the motion. We therefore affirm.

Statement of Facts and Procedural History

Park owned real property in Fresno, California. In March 2006, she sold the property for $7.3 million, taking back a second deed of trust securing a purchase money note in the amount of $2.45 million. First American, the escrow holder for the transaction, prepared the grant deed, the purchase money note, and the deed of trust securing Park's note. The buyers failed to make payments on Park's note, and, in September 2006, at Park's request, First American prepared a notice of default.

In late December 2006, First American informed Park that the deed of trust contained a defect, in that it named the individual buyers as trustors, while the grant deed identified the buyers' corporation as the entity holding title to the property. First American assured Park it had the authority to proceed with a scheduled trustee's sale despite the defect in the deed of trust. First American nevertheless encouraged Park to accept an offer by the buyers to a stipulated reformation of the deed of trust in exchange for a rollover of the unpaid balance of the note, and an extension of the note's term. On February 13, 2007, Park refused the buyers' rollover offer, and proceeded with the trustee's sale, scheduled for February 23.

On February 15, 2007, Park's attorney was informed by First American's vice-president and regional counsel that First American did not have the authority to proceed with the trustee's sale, and the deed of trust would have to be reformed. After the reformation was complete, First American restarted the foreclosure procedures, and scheduled a trustee's sale for July 24, 2007. The buyers filed for bankruptcy one day before the scheduled sale, causing the trustee's sale to be cancelled again. The bankruptcy was dismissed in May 2008.

When the trustee's sale was finally held in April 2008, there were no buyers willing to purchase the property, and Park made a full credit bid for the property. Park also used her own assets to acquire title from the first trust deed holder at another trustee's sale.

Park sued First American for negligence, fraud, and breach of fiduciary duty. First American filed a motion for summary judgment. The trial court granted First American's motion, judgment was entered, and Park appealed.

Discussion

I.Summary Judgment

“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]” ( Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476, 110 Cal.Rptr.2d 370, 28 P.3d 116.)

First American moved for summary judgment, in part, on the ground that Park could not establish damages, because there was no triable issue of material fact regarding the existence of a bona fide purchaser at the time of the noticed February 2007 foreclosure sale. First American's separate statement set forth as undisputed facts that Park had not identified any ready, willing, and able buyers who could and would have purchased the property had the foreclosure sale occurred as originally noticed in February 2007.¹

Park opposed the motion, claiming there were triable issues of material fact regarding the alleged lack of damages: “Plaintiff has identified Ms. Si Oak Kim, a bona fide purchaser who was ready, willing, and financially able to purchase the property at a trustee's sale held in 2007, or at a subsequent sale in 2007, for a purchase price of up to $6.8 million.” In opposition to the motion, Park submitted her own declaration, and the declarations of her attorney, David Kim (attorney Kim), and Eui Rak Kim, a real estate broker who had represented potential buyers interested in the property (the broker). Park stated in her declaration that she “had numerous prospective buyers represented by licensed real estate brokers expressing interest in acquiring the property,” and that she had “recently learned the identity of one such buyer to have been Ms. Si Oak Kim, represented by a real estate agent by the name of Mr. Eui Rak Kim.” In the broker's declaration, he stated that he “ had a number of buyers interested in the [p]roperty,” and that Si Oak Kim (the prospective buyer) “was prepared to pay up to $6.8 million for the [p]roperty.”

First American objected to the following statement from attorney Kim's declaration: “[The broker] confirmed the existence of numerous buyers for the property in 2007 and identified one such buyer as [the prospective buyer].” First American also objected to the following paragraph from the broker's declaration: “Among those buyers, [the prospective buyer] was the one who was a ready, willing and financiallyable buyer who was intent on purchasing the [p]roperty because she was looking for a property that would enable her to obtain a permanent resident status in the United States. As a successful developer in South Korea, she was very interested in the [p]roperty because of the large vacant lot that was part of the [p]roperty, which she planned on developing.” First American's objections were based on the grounds of lack of personal knowledge, lack of foundation, assumption of facts not in evidence, and hearsay. The trial court sustained First American's objections.

The trial court's minute order granting the motion for summary judgment reads, in relevant part, as follows: “Defendant met its initial burden of proof and Plaintiff failed to present admissible evidence of the existence of a bona fide purchaser at the time Plaintiff initially desired to foreclose. Disputed Facts 46, 47 and 56 reference supporting evidence. Plaintiff cannot make out the element of damages to support any of the claims.”

On appeal, Park argues her declaration and the admitted portions of the broker's declaration created a triable issue of material fact. Park also argues the trial court erred in sustaining the evidentiary objections to the declarations of attorney Kim and the broker. Finally, Park argues that if the evidence she presented was insufficient, the court should have granted her request for a continuance to permit her to obtain a declaration from the prospective buyer. We address each argument in turn.

II.The Trial Court Did Not Err in Determining Park Had Failed to Show the Existence of a Triable Issue of Material Fact.

The parties agree that the issue before the trial court was whether Park had presented admissible evidence that there was at least one ready, willing, and able buyer who would have purchased the property but for the delay in the foreclosure proceeding resulting from the error in the deed of trust. The trial court did not err in granting the motion for summary judgment because Park did not establish the existence of a triable issue of disputed material fact regarding (1) the existence of a contract between herself and a potential buyer, or an offer from a potential buyer, to purchase the property on Park's terms, or (2) any potential buyer who had the financial ability to satisfy Park's terms. The parties agree that a ready, willing, and able buyer was required to prove damages. As we describe, the law so requires.

A. Contract or Offer to Purchase

“ ‘In this state it is well established, in the absence of any specific agreement to the contrary, that a broker employed to sell real or personal property has earned his commission when ... he has produced a person who is ready, willing, and able to purchase the property on terms satisfactory to the seller, and has obtained a binding and valid contract for a sale on the terms proposed by the seller, or has brought the seller and buyer together and thus enabled them to enter into a contract of sale, or has produced such a purchaser who has verbally accepted the seller's terms and offered to enter into a written contract embodying the said terms and binding upon both parties....' [Citation].” ( R.J. Kuhl Corp. v. Sullivan (1993) 13 Cal.App.4th 1589, 1600, 17 Cal.Rptr.2d 425.) Nonbinding, preliminary communications between a broker and a potential buyer are insufficient ( Mattingly v. Pennie (1895) 105 Cal. 514, 519, 39 P. 200), as is a memorandum of price between a buyer and a seller intended as a basis for future negotiations. ( Massie v. Chatom (1912) 163 Cal. 772, 775–776, 127 P. 56). The contract or offer must be provided to the seller, not merely the seller's broker. ( Hicks v. Christeson (1917) 174 Cal. 712, 717–718, 164 P. 395.)

In a different context, a junior lienholder alleging a senior lienholder's interference with a foreclosure sale resulting in loss of profits to the junior lienholder must show that a buyer would have purchased the property but for the interference. “In order to prove it was damaged by the irregularities in the foreclosure sale which dissuaded or prevented a higher...