Tardif v. Zatikyan
Filed 7/3/13
Tardif v. Zatikyan CA2/4
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
BARBARA TARDIF,
Plaintiff and Appellant,
v.
ARMAN ZATIKYAN et al.,
Defendants and Respondents.
B240701
(Los Angeles
County
Super. Ct.
No. SC105696)
APPEAL from
a judgment of the Superior Court
of
County, John H. Reid, Judge. Reversed in part, affirmed in part.
Law Office
of Gerald L. Friend and Gerald L. Friend for Plaintiff and Appellant.
Law Offices
of Ginzburg & Bronshteyn and Yasha Bronshteyn for Defendants and
Respondents Arman Zatikyan and Lilit Grigoryan.
Law Offices
of Jerry K. Staub and Jerry K. Staub for Defendant and Respondent Arline
Bolin.
>
Barbara
Tardif appeals from a judgment of
dismissal entered in her action for a real estate broker’s commission after
the trial court sustained demurrers to several causes of action alleged in her
second, third, and fourth amended complaints.
We conclude that she alleged a cause of action for breach of contract
against the sellers on a third party beneficiary theory based on the listing
agreement entered into by the sellers.
Tardif failed to allege a right to recover a commission from the
sellers’ agent based on the listing of the property with the Multiple Listing
Service itself. She adequately alleged a
cause of action for intentional interference with prospective economic
advantage against the sellers and their broker which is not barred by the
abandoned.
FACTUAL AND PROCEDURAL SUMMARY
We take our
factual summary from the allegations of the second, third and fourth amended
complaints which are at issue in this appeal.
In August 2007, Arman Zatikyan and Lilit Grigoryan purchased a residence
on Cherokee Lane in Beverly
Hills (the Cherokee property) for $9,250,000. In January 2008, they purchased a different
property for $18,000,000, necessitating the sale of the Cherokee property. Tardif alleged that Zatikyan and Grigoryan
entered into an exclusive listing agreement (Listing Agreement) with defendant
Arline Bolin (listing agent) to sell the property. Zatikyan and Grigoryan dispute this, pointing
out that the space on the Listing Agreement for seller is filled in with “9311
Cherokee Laneâ€, the address for the property,
rather than with their names. We discuss that dispute below, but as we shall
explain, it is appropriate to identify Zatikyan and Grigoryan in this opinion
as “sellers.†The listing period was January 8, 2008 to May 8, 2008.
The Listing
Agreement provided that sellers would pay a 1 percent commission to the listing
agent and a 2½ percent commission to a “seller broker†who participated in the
Multiple Listing Service (MLS), and procured a buyer offering to purchase the
property on terms acceptable to the sellers during the listing period
(cooperating broker).
name="_ftnref1" title="">[1] On January
8, 2008, the Cherokee property was listed on the MLS with an asking
price of $9,495,000.
name="_ftnref2" title="">[2]
Tardif is
licensed as a California real
estate agent and is a participating member of the MLS.
Willis (buyers) who were in the market to purchase property in Beverly
Hills. On April 29, 2008, Tardif showed buyers
the Cherokee property. They instructed
her to prepare and present an offer to sellers to purchase the property for
$8,600,000. A provision for payment of a
commission to a “cooperating broker†was included in the offer. Tardif alleged this offer was rejected by
sellers, who counteroffered to sell for $9,220,000 under the same terms as the
buyers’ original offer, including the obligation that sellers pay her a 2½ percent commission
as cooperating broker.
The second
amended complaint alleged that buyers authorized Tardif to prepare a counter to
the counteroffer to purchase the property for $8,900,000. But after she forwarded that offer to buyers,
they advised her that they were no longer interested in purchasing the Cherokee
property and instructed Tardif to withdraw all offers. The sellers never received this counter to
the counteroffer. Tardif withdrew all
offers on the property in writing on May
6, 2008. These allegations
are omitted from the third and fourth amended complaints.
Tardif
alleged that the same day, May 6, 2008,
buyers, utilizing the name “Island Shore Services, LLCâ€, a business entity they
owned and which was alleged to be their alter ego, entered into a sales
contract with sellers to purchase the Cherokee property for $9,000,000. No buyer’s agent was involved in the
transaction. Escrow closed on this sale
on June 18, 2008.
Tardif sued
Zatikyan, Grigoryan, Bolin (collectively “defendantsâ€), and Bolin’s agency,
Remax Marquee Partners, in November 2009.
Sellers answered, and there was a voluntary dismissal of Remax. Tardif was granted leave to amend and filed a
first amended complaint in September 2010 which alleged causes of action for 1)
breach of contract, 2) breach of contract/third party beneficiary/conspiracy to
breach contract; 3) fraud and conspiracy to commit fraud, intentional
misrepresentation, and 4) interference with prospective economic
advantage. The court sustained a
demurrer to all causes of action with leave to amend. The second amended complaint was filed in
February 2011. Defendants’ demurrers
were sustained without leave to amend as to the second cause of action for
breach of contract/third party beneficiary and with leave to amend as to the
remaining causes of action.
Tardif’s
third amended complaint alleged causes of action for
covenant of good faith and fair dealing. The demurrers were sustained without leave to
amend, but Tardif was given leave to file a fourth amended complaint alleging
interference with prospective economic advantage. The fourth amended complaint alleged only
that tort cause of action. Defendants
demurred once again. Their demurrers
were sustained without leave to amend and the entire action was dismissed. Orders and
Zatikyan, Grigoryan, and Bolin were entered.
Defendants gave notice of entry of judgment. This timely appeal followed.
DISCUSSION
I
On
appeal from a dismissal after an order sustaining a demurrer, we “‘“examine the
complaint de novo to determine whether it alleges facts sufficient to state a
cause of action under any legal theory, such facts being assumed true for this
purpose.â€â€™ [Citations.]†(Village
Northridge Homeowners Assn. v. State Farm Fire & Casualty Co. (2010) 50
Cal.4th 913, 921.) “[W]e treat the
demurrer as admitting all material facts properly pleaded. ‘“Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.â€â€™ [Citations.]â€
(C.A. v. William S. Hart Union
High School Dist. (2012) 53 Cal.4th 861, 866.)
II
Tardif
argues the trial court erred by sustaining demurrers to her cause of action for
breach of contract/third party beneficiary in her second amended
complaint. In that cause of action, she
alleged that she was an intended third party beneficiary of the Listing
Agreement entered into between sellers and Bolin, their listing agent, which is
attached to the complaint. Her contract
claims against the sellers are based on the Listing Agreement. She also alleged that between May 2008 and
August 2009 and thereafter, defendants knew that she had represented the
Willises in connection with the Cherokee property. Allegedly, defendants agreed to leave the
Cherokee property on the market as an “active†listing until the close of
escrow on June 18, 2008, after the listing expired on May 8, 2008. Tardif alleged: “Defendants proceeded to sell the Cherokee
Lane Property to ISLAND SHORE SERVICES, LLC, whose owners, managing members and
alter egos were and continue to be none other than Plaintiff’s clients, BRIAN
WILLIS and SNIZHANA WILLIS.†The cause
of action alleged that the ultimate sale of the property was designed to avoid
paying Tardif the 2½ percent commission on the sale.
The
“Listing Period†under the Listing Agreement was from January 8, 2008 to May 8,
2008. Paragraph 4 of the Listing
Agreement describes the compensation to be paid to “broker,†identified as
Bolin. Tardif claims a right to a 2½
percent commission under three subparts of paragraph 4.
A. Compensation Provisions of Paragraph 4
Subparagraph
4.A. of the Listing Agreement provided form options which were to be checked
and filled out for commissions based on either a percentage of the purchase
price or a flat dollar amount, all of which were left blank. Tardif relies on the third provision of this
subparagraph which reads: “Seller agrees
to pay to Broker as compensation for services irrespective of agency
relationship(s) . . . 1% to listing 2.5% to seller broker as
follows: [¶] (1) If Broker, Seller, cooperating broker, or
any other person procures a buyer(s) who offers to purchase the Property on the
above price and terms, or on any price and terms acceptable to seller during
the listing period, or any extension.â€
Paragraph
4.D. of the Listing Agreement addresses the subject of cooperating
brokers. It states that sellers had been
advised that Bolin had a policy of cooperating with other brokers and sets
forth “the amount of compensation offered to, other brokers.†Subparagraph 4.D. (1) states: “Broker is authorized to cooperate with and
compensate brokers participating through the multiple listing service(s)
(‘MLS’): (i) by offering MLS
brokers: either [here a box is checked]
2½ [filled in a blank] percent of the purchase price
. . . .â€
B. Analysis
Tardif
argues that she adequately alleged a cause of action for
beneficiary of the Listing Agreement, relying on allegations that she procured
the buyers within the listing period.
She contends that an agreement to sell the property was consummated
between the buyers and seller “or their alter egos†during the listing
period. She apparently argues that the
signing of the agreement for sale of the property to Island Shores is a
sufficient allegation that the buyer’s price and terms were acceptable to the
owners as required under paragraph 4 of the Listing Agreement. Based on this reasoning, she contends she was
entitled to a 2½ percent commission under the Listing Agreement. Tardif argues: “However, the sale occurred outside the
auspices of the Listing Agreement . . . and did not involve the
payment of commission to the cooperating seller broker [Tardif]
. . . as required under the contract
. . . thereby giving rise to a cause of action for a third-party
breach of contract.â€
As a
separate basis for her cause of action for breach of contract, Tardif relies on
paragraph 4.A.(2) of the Listing Agreement.
As alleged, that paragraph provides for payment of a commission after
cancellation of the Listing Agreement if the owners entered into a contract of
sale with buyers who were physically shown the property during the listing
period or had submitted a signed written offer to acquire the property.
Listing Agreement had been cancelled, and that cancellation would be a question
of fact beyond the scope of a demurrer.
But she alleged that she showed the property to Brian and Snizhana
Willis, submitted a signed offer for them, and that the property was sold to
their “related entity,†Island Shore Services, which she describes as the
buyers’ “wholly-held LLC and alter ego.â€
The complaint alleged that the ultimate buyer, Island Shore Services,
LLC is “a corporation owned and/or controlled by ‘BUYERS’ and which was the
alter ego of ‘BUYERS’ . . . .â€
The third
basis for the breach of contract cause of action under the Listing Agreement is
the third subparagraph of paragraph 4.A. which provides for payment of
2½ percent to the seller broker if the property was withdrawn from sale,
conveyed, or transferred by seller during the listing period or any extension
without “Broker’s prior written consentâ€.
The Listing Agreement identifies Bolin, not Tardif, as the
“Broker.†Tardif argues that this
provision applies because buyers withdrew their counteroffer, and then
purchased the property the same day by using the Island Shores entity.
Tardif
argues the trial court erred in relying on Colbaugh
v. Hartline (1994) 29 Cal.App.4th 1516 (Colbaugh) in sustaining the demurrers to the cause of action for
breach of contract on a third party beneficiary theory. She contends that Colbaugh is distinguishable.
In that case, a ranch was listed for sale with a broker using a standard
form “Exclusive Authorization to Sell†which authorized the broker to cooperate
with subagents and provided for a 6 percent commission to the listing
broker. At sale, the 6 percent
commission was paid by sellers, 3 percent to the listing broker, and 3 percent
to Regal Realty and one of its agents.
Before the escrow closed, plaintiffs (Roger Colbaugh, a broker, and
Rodney Niebuhr, a salesman who was associated with him) demanded the 3 percent cooperating
broker’s commission on the ground that they, rather than Regal Realty, were the
procuring cause of the sale. Plaintiffs
sued for the commission and settled with the buyers of the property and the
real estate agents who received the cooperating broker’s commission. They went to trial against the sellers, but
the trial court granted nonsuit in favor of the sellers.
The Court
of Appeal found no evidence of a written cooperation agreement between the
listing broker and the cooperating brokers. (Colbaugh,
supra, 29 Cal.App.4th at pp.
1523–1524.) It also held that any action
was barred for failure to comply with the statute of frauds for real estate
commissions. (Civ. Code, § 1624, subd.
(5).) It noted that there was no
provision in the Listing Agreement authorizing the listing agent to divide any
commission with subagents. In addition,
since the sellers had complied with the only commission term by paying 6
percent to the listing agent, there was no evidence of a breach of the Listing
Agreement. (Id. at pp. 1524–1525.)
Tardif argues that Colbaugh is
distinguishable because here the Listing Agreement expressly provided for
payment of a 2½ percent commission to the cooperating broker. Tardif alleged that sellers were fully aware
of this provision in that they signed the Listing Agreement.
We agree
with Tardif that Colbaugh,
distinguishable on this basis. Here,
unlike Colbaugh, there was a written
agreement, signed by one of the sellers, to split the commission between the
listing broker and the cooperating broker.
In Colbaugh there was no
written agreement between the listing broker and cooperating broker, nor was
there evidence that the listing broker agreed to employ plaintiff as a subagent
or to pay him a commission if he procured the sale of the property. The plaintiffs were among a number of brokers
who were given materials soliciting a bid on the property. (Id.
at p. 1523.)
Tardif was a participant in the MLS, while the plaintiffs in
supra, 29 Cal.App.4th at p. 1523, fn.
1.) In a footnote, the
of a listing with the Multiple Listing Service:
“As noted above, the brokers did not make contact through the local
Multiple Listing Service. ‘When the
listing is filed with the Multiple Listing Service there is an express offer to
pay compensation to a member of the Service who procures a buyer; the amount of
the compensation is stated as a specific sum or a percentage of the sales price
of the property.’ (1 Miller & Starr,
[Cal. Real Estate (2d ed. 1989)] § 2:30, p. 621.)†(Id.
at p. 1523, fn. 3.) The court
cause of action by a cooperating broker against the seller depends on “‘whether
the owner was aware of, or expressly authorized, the cooperation agreement
between the listing broker and the cooperating broker, whether the seller
accepted the buyer’s offer by executing a contract of sale, and whether the sale
to the buyer was consummated.’
(1 Miller & Starr, op.
cit. supra, § 2:30, pp. 623–624.)†(
buyers’ offer and that the sale was consummated, albeit through the use of the
Island Shores entity which she alleged was the alter ego of the buyers.
Where a
contract is expressly made for the benefit of a person who is not a party to a
contract, that third party may sue to enforce his or her rights. (Mercury
Casualty Co. v. Maloney (2003) 113 Cal.App.4th 799, 802, citing Civ. Code,
§ 1559.) A putative third party
beneficiary must demonstrate that the claimed benefit is one the contracting
parties intended to confer. (
1020, 1028; see also Spinks v. Equity Residential
Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022.) “The rights of a third party beneficiary thus
depend upon the intent of the contracting parties. (Hess
v. Ford Motor Co. (2002) 27 Cal.4th 516, 524 (Hess).) ‘Ascertaining this
intent is a question of ordinary contract interpretation.’ (Ibid.) It follows that if the requisite intent
appears unambiguously from the face of the contract, the third party makes a
prima facie showing of entitlement merely by proving the contract.†(Rodriguez
v. Oto, supra, 212 Cal.App.4th at
p. 1028 [“In a case of this kind, the contract either grants an
asserting rights under it, or it affords him no benefit at all.â€].)
The
decision in Steve Schmidt & Co. v.
Berry (1986) 183 Cal.App.3d 1299 (Schmidt)
is instructive. In that case, a property
sale fell through when the buyer refused to agree with terms of a counteroffer
by the seller. The Listing Agreement
provided that the seller authorized his agent to cooperate with other brokers
and to divide any commission due under the agreement with them. (Id.
at p. 1311.) Unlike our case, the intent
to allow division of the commission was further memorialized in a written
letter agreement between the listing broker and the cooperating broker. That agreement provided that the 6 percent
commission would be divided between the brokers if the cooperating broker
procured a ready, willing, and able buyer.
(Ibid.) Although Schmidt
involved review of a summary judgment, no extrinsic evidence was presented
on the issue of the division of the commission so it was treated as a question
of law based on interpretation of the agreement. (Schmidt,
supra, 183 Cal.App.3d at p.
1313.) The court found that the seller
was bound by the listing broker’s promise to share the commission with the
cooperating broker and that the seller had made an implied promise to the
cooperating broker to pay him. (
broker had enforceable rights against the seller “as a member of a class which
was intended to be directly benefited†by the seller’s promise to divide the
commission between the listing and cooperating brokers. (Id.
at p. 1313.)
Sellers
argue that Tardif cannot assert third party beneficiary status because the
Listing Agreement does not identify specific parties or the class of the
parties intended to benefit by the agreement.
We disagree. The
identify the third party by name as long as such third party can show that he
is one of a class of persons for whose benefit it was made. [Citations.]†(Schmidt,
supra, 183 Cal.App.3d at p.
1313.) It concluded that section 10(c)
of the Listing Agreement expressed this intent:
“(c) Owner hereby authorizes
Agent to cooperate with other brokers, salesmen and subagents, and to divide
with them any commission or other compensation due under this Agreement.†(Id.
at p. 1304.)
The
language of the Listing Agreement here is similar to the language relied upon
by the Schmidt court. Paragraph 4.D. states: “Seller has been advised of Broker’s [Bolin]
policy regarding cooperation with, and the amount of compensation offered to,
other brokers. [¶] (1) Broker is
authorized to cooperate with and compensate brokers participating through the
multiple listing service(s) (‘MLS’): (i)
by offering MLS brokers: either [here a box is checked] 2½ percent of the
purchase price . . . as per Broker’s policy.†As did the plaintiff in Schmidt, supra, 183
Cal.App.3d 1299, Tardif adequately alleged she was a third party beneficiary of
the Listing Agreement and that this agreement to pay her commission was
breached when the property was sold to an entity that is the alter ego of the
buyers she procured. Under the language
of the Listing Agreement, sellers promised to pay the cooperating broker’s
commission. In light of this conclusion,
we need not address sellers’ arguments premised on the lack of an express
written agreement to pay a commission to a cooperating broker, such as
Tardif.
Sellers
attempt to distinguish Schmidt by
arguing that no contract was created for the sale of the Cherokee property
because of the counteroffer and the buyers’ withdrawal of their offer. But as we have discussed, Tardif had third party
beneficiary rights arising from the Listing Agreement itself.
Sellers
next argue that Tardif cannot claim a right to a commission as third party
beneficiary because the sale was never consummated, a condition precedent to
the right to a commission. Paragraph
4.A.(1) of the Listing Agreement provides that a commission was to be paid (1
percent to listing broker, 2½ percent to seller broker) if a cooperating broker
procures a buyer(s) “who offers to purchase the Property on the above price and
terms, or on any price and terms
acceptable to Seller during the Listing Period . . . .†(Italics added.) The documents attached to the second amended
complaint establish there was no offer for the listing purchase price of
$9,625,000. But, Tardif alleged that
before the Listing Agreement expired on May 8, 2008, the Cherokee property was
sold to an alter ego of buyers. “Whether
a party is liable under an alter ego theory is a question of fact. [Citation.]â€
(Leek v. Cooper (2011) 194
Cal.App.4th 399, 418.) Under the
principles governing review of a ruling sustaining a demurrer, we must treat
the demurrer as admitting all material facts properly pleaded. (C.A.
v. William S. Hart Union High School Dist., supra, 53 Cal.4th at p. 866.)
Therefore, at the pleading stage, we must accept as true the allegation
that Island Shores, which purchased the Cherokee property from sellers was the
alter ego of the Willises who were procured by Tardif.
Sellers
argue that Tardif cannot bring a breach of contract cause of action against
them as third party beneficiaries of the Listing Agreement because they are not
identified as sellers on that document.
As we have noted, the line for seller is filled in with the address of
the property rather than with the names of the owner. The second amended complaint does not contain
an allegation addressing this issue. In
her reply brief, Tardif argues that sellers raise a factual issue regarding the
identity of the seller, which must be resolved in favor of the allegations of
the complaint on demurrer. In their
brief, sellers assert that “ZATIKYAN presented a written counteroffer to the
WILLISES in the amount of $9,220,000.00 which was not accepted.†This statement is supported by a reference to
the largely illegible counteroffer which was made an exhibit to the second
amended complaint and the succeeding versions.
This is an admission that at least Zatikyan was in fact the seller of
the Cherokee property. In addition, both
the purchase offer prepared by Tardif on behalf of the buyers dated April 29,
2008 and the counteroffer prepared by Tardif for buyers identify Zatikyan and
Grigoryan as sellers. Both documents are
exhibits to the second amended complaint.
Any ambiguity regarding the identity of the seller on the Listing
Agreement may be resolved by amendment of the cause of action for breach of
contract on the third party beneficiary theory and by attaching a legible copy
of the counteroffer dated April 30, 2008.
Sellers
also argue that Tardif was required to allege that a commission was paid to the
listing broker which was to be shared with Tardif. But the fact that no commission was paid to
the listing broker does not exclude a claim by Tardif for her commission under
the express terms of the Listing Agreement we have discussed.
We conclude
that Tardif adequately alleged a cause of action for breach of contract based
on the Listing Agreement against the sellers and reverse the trial court’s
ruling sustaining demurrers to that cause of action without leave to amend.
III
At oral
argument, counsel for Tardif clarified her theory against Bolin. He explained that it is based on breach of
the listing of the property with the Multiple Listing Service, a document
attached as an exhibit to the third amended complaint. He explained that Tardif is not claiming a
right to collect her commission from Bolin under the terms of the Listing
Agreement. Based on that representation,
we do not discuss the arguments of the parties regarding any possible liability
of Bolin to Tardif under the Listing Agreement or any document in this matter
other than the listing itself.
Bolin’s
argument under the listing is based on the following provision at the bottom of
the form: “CS0: 2.5%â€. He contends that under the rules and
regulations of the Multiple Listing Service, this notation means that
cooperating brokers are promised a 2.5 percent commission for procuring ready
and willing buyers. This language, he
contends, constituted a unilateral offer to Tardif on which she relied.
Tardif’s
reliance on the listing document itself fails because it does not identify
Bolin as the party who promised to pay a commission to a cooperating
broker. “In a unilateral contract, there
is only one promisor, who is under an enforceable legal duty. (1 Corbin on Contracts (1993) § 1.23, p.
87.)†(Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 10.) The factual recitations of the third amended
complaint alleged that after sellers and Bolin executed the Listing Agreement,
“[t]he property was thereafter listed in the MLS by Defendant, BOLIN on or
about January 8, 2008 for the asking price of $9,495,000.00 with 2 ½ %
real estate agent who was a member of the MLS and who procured a buyer for the
property.†(Italics added.) The cause of action for breach of contract,
which incorporates this allegation, inconsistently alleges that the MLS listing
was a unilateral offer made by each of the defendants.
We conclude
that the terms of the listing itself do not establish a unilateral offer
a 2.5 percent commission to cooperating brokers. Tardif failed to allege a contract theory
against Bolin and we affirm the court’s rulings on that basis as to that theory
only.
Bolin also
argues that the exclusive remedy for resolving disputes between brokers
concerning a MLS listing is arbitration under the rules of the MLS, which are
quoted extensively in the fourth amended complaint. Bolin did not invoke the right to arbitrate
any claim brought against her by Tardif in her demurrer to the second amended
complaint. She does not demonstrate that
she unsuccessfully sought arbitration of those claims. The right to arbitrate was waived. (See
Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 448–449
[piecemeal litigation of issues, including demurrers, through pretrial
procedures justifies finding of waiver].)
We find no
error in the trial court’s ruling sustaining the demurrers to Tardif’s cause of
action for breach of contract as to Bolin.
IV
The fourth
amended complaint alleged a cause of action for intentional interference with
prospective economic advantage. Tardif
alleged that several days after the Willises rejected the sellers’
counteroffer, Bolin contacted them without informing Tardif. She alleged that Bolin told the Willises that
the sellers were very motivated to sell the Cherokee property and that they
should meet to discuss the sale. Tardif
alleged that Bolin told the Willises not to contact her, and that Bolin and the
sellers would “‘take care’ of [Tardif] by paying her for bringing them to the
property, if they agreed to purchase the Cherokee Lane property for $9
million.†The Willises agreed, and the
sale was consummated for that amount.
Bolin received her 1 percent commission of $90,000 and Tardif was paid
nothing. Tardif alleged that the
defendants intentionally concealed the sale from her by designating the
property as withdrawn from the MLS rather than as sold. She alleged that the defendants acted with
the knowledge and intent to deprive her of her 2½ percent commission. As a result, she alleged she did not discover
the sale had been made to the Willises through the Island Shores entity until
she received an e-mail from the Willises on or about August 20, 2009. These allegations are supported by footnotes
quoting portions of the MLS Rules and Regulations.
Defendants
argue this cause of action is barred by the two-year limitations period of Code
of Civil Procedure section 339, subdivision (1). (Augusta
v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 10; see also
76 Cal.App.4th 164, 168.) Tardif
contends that sellers raise this issue for the first time on appeal. That is incorrect. The bar of the statute of limitations was a
ground for their demurrer to the fourth amended complaint. In the fourth amended complaint, Tardif
alleged that she learned of the basis for the intentional interference claim on
August 20, 2009. The fourth amended
complaint was filed October 24, 2011.
In her
reply brief, Tardif argues that the claim is not barred because it arises from
the same facts and circumstances alleged in the original complaint, which was
filed November 17, 2009. The original
complaint alleged a cause of action for interference with prospective economic
advantage. The sellers answered this
complaint. But it was superseded by a
first amended complaint, filed with leave of the trial court, which included a
cause of action for intentional interference.
The sellers demurred. The trial
court sustained the demurrer to the cause of action in the first amended
complaint on the ground that Tardif had not adequately pled various elements of
the tort. It granted 20 days leave to
amend. Tardif did not allege a cause of
action for intentional interference in the second amended complaint. But after the trial court sustained
defendants’ demurrers to all causes of action alleged in the third amended
complaint, it granted Tardif’s request for leave to amend to allege a cause of
action for interference with prospective economic advantage.
We conclude
that the allegation of the fourth amended
complaint relates back to the original complaint which was filed in 2009,
and was timely. “‘[T]he relation-back
doctrine deems a later-filed pleading to have been filed at the time of an
earlier complaint which met the applicable limitations period, thus avoiding
the bar. In order for the relation-back
doctrine to apply, “the amended complaint must (1) rest on the
set of facts, (2) involve the same
injury, and (3) refer to the same
instrumentality, as the original one.â€â€™
[Citation.]†(
Cal.App.4th 1100, 1113.) The
interference cause of action of the fourth amended complaint rests on the same
set of facts regarding the listing and sale of the Cherokee property, is based
on the same injury (loss of the 2½ percent commission), and refers to the same
documents alleged in the original complaint.
In addition, although Tardif failed to include the interference cause of
action in her second amended complaint after having been given leave to amend
it, the trial court acted within its discretion in concluding that a possible
cause of action could be alleged in the fourth amended complaint. We turn to the merits of the pleading.
The
elements of a cause of action for intentional interference with prospective
economic advantage are “‘“(1) an economic relationship between the plaintiff
and some third party, with the probability of future economic benefit to the
plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional
acts on the part of the defendant designed to disrupt the relationship; (4)
actual disruption of the relationship; and (5) economic harm to the plaintiff
proximately caused by the acts of the defendant.†[Citations.]’
[Citation.]†(
(2003) 29 Cal.4th 1134, 1153.) In
addition, the plaintiff must “plead intentional wrongful acts on the part of the defendant designed to disrupt the
relationship.†(Id. at p. 1154.) “[A]n act
is independently wrongful if it is unlawful, that is, if it is proscribed by
some constitutional, statutory, regulatory, common law, or other determinable
legal standard. [Citations.]†(Id.
at p. 1159, fn. omitted.)
Tardif
alleged that Section 8.1 of the MLS Rules and Regulations requires the listing
broker to obtain authorization from the sellers to comply with various
provisions of the MLS rules before submitting a listing to the MLS. These include: “c). abide by the rules of the MLS; d).
provide timely notice of status changes of the listing to the MLS;
e). provide sales information, including selling price, to the MLS upon
sale of the property for publication and dissemination to those authorized by
the MLS; and f). publish sales information after the final closing of a
sales transaction in accordance with these MLS Rules.†She further alleged that the actions of the
defendants in removing the Cherokee property from the MLS with a “‘
close of escrow was a violation of MLS Rules and Regulations Section 10.2,
which states: “‘Listings with accepted
offers shall be reported to the MLS or input into the MLS database as ‘pending’
or ‘back-up’ within 2 business days of the acceptance . . .
Upon final closing, the listing broker shall report or input the listing
in the MLS as ‘sold’ within 2 business days of the final closing . . .
.’†She alleged that listing the
property as sold within the required time frame would have alerted her to the
fact the property had actually sold. She
alleged that this violation of the MLS rules was “intentionally designed to
deny Plaintiff her 2½ percent commission on the sale of the Cherokee Lane
Property.â€
Under the
rules governing review of a ruling on a demurrer, we accept these allegations
regarding the rules of the MLS as true.
Tardif has adequately alleged the elements of the interference cause of
action, including that defendants’ conduct was independently wrongful because
it was proscribed by the quoted rules and regulations of the MLS.
DISPOSITION
The
judgment of dismissal is reversed as to Tardif’s causes of action for breach of
contract on a third party beneficiary theory as to sellers. The judgment of dismissal is affirmed as to
the contract theory against Bolin. We
reverse the judgment of dismissal on the cause of action for intentional
interference with prospective economic advantage as to sellers and Bolin. Tardif is to have her
EPSTEIN,
P. J.
We concur:
WILLHITE, J.
MANELLA, J.
name="_ftn1" title=""> [1] The Listing Agreement authorized Bolin to offer
MLS brokers 2½ percent of the purchase price.
name="_ftn2" title=""> [2] Although the third amended complaint alleges
the Cherokee property was listed for $9,495,000, the listing with the MLS, an
exhibit to the complaint, states the listing price as “$9,625,000â€.
