Spiegel Development v. SFV Realty Professionals

Filed 7/31/06 Spiegel Development v. SFV Realty Professionals CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, John P. Farrell, Judge. Affirmed.

Lang, Hanigan & Carvalho and Arthur Carvalho, Jr. for Plaintiff and Appellant.

Law Offices of Zimmerman & Kahanowitch, Richard Kahanowitch and Dee Ann Jenkins for Defendants and Respondents.

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INTRODUCTION

Plaintiff Spiegel Development, Inc. appeals from an order granting summary judgment to defendants SFV Realty Professionals, Inc. (SFV) and Concetta Yamauchi (Yamauchi) with respect to plaintiff's cause of action for negligent misrepresentation in a real estate purchase. We affirm.

FACTS

Plaintiff, a licensed real estate developer, entered into negotiations with Jose Martinez (Martinez) for two adjacent parcels of vacant land which Martinez owned. Defendant Yamauchi, who was associated with defendant SFV, was the broker who represented Martinez in the transaction. Plaintiff and its broker, Michael Harris (Harris), understood that one of the parcels was the subject of a prior escrow with another buyer. On August 13, 2003, Yamauchi and Harris discussed the prior escrow situation. According to Harris, Yamauchi told him that the prior escrow had been cancelled and that she would fax him a copy of the cancellation instruction. Harris reported Yamauchi's statements to plaintiff promptly. On August 15, 2003, Harris received from Yamauchi, by fax, a copy of an amendment to cancel the prior escrow showing only that Martinez, as seller, had signed it. No signature appeared for the buyer. Plaintiff and Harris both knew that two signatures, that is, signatures of both buyer and seller, are required in order to cancel an escrow. In deciding that the prior escrow had been cancelled, plaintiff relied solely on its broker Harris' conversation with Yamauchi and the partially executed escrow amendment.

Subsequently, Martinez made a counter-offer to plaintiff's offer. Martinez's counteroffer explicitly stated that the sale was contingent on the cancellation of the prior escrow: â€