Parker v. Winslow

Filed 8/30/07 Parker v. Winslow CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Affirmed.

Plaintiffs Julie K. Parker, Juel A. Parker and Darlene O. Parker (collectively plaintiffs or the Parkers, or individually by first name when relevant) appeal from a judgment entered against them and in favor of the defendant Angela G. Winslow aka Angela Gehegan, trustee of the Angela Gehegan Trust (Winslow) after the trial court granted Winslow's motion for summary judgment on plaintiffs' complaint alleging actual and constructive fraud. Plaintiffs essentially claimed that Winslow failed to disclose and intentionally misrepresented the location of her backyard property line when she sold her home to them in 2001.

Plaintiffs contends the trial court erred in granting Winslow's summary judgment motion because it found Julie had no standing to prosecute this case and as to Juel and Darlene, the court found their complaint failed because they could not establish damages, an essential element of each of their causes of action, or reasonable reliance upon any alleged misrepresentations or concealment by Winslow. In their reply brief, plaintiffs assert that our recent decision in Manderville v. PCG & S Group, Inc. (2007) 146 Cal.App.4th 1486 (Manderville) precludes summary judgment regarding the element of justifiable reliance for their intentional fraud claims. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

On December 30, 2004, the Parkers filed an unverified complaint for actual and constructive fraud against Winslow, as well as against Winslow's real estate agent, Paul Hahn, and the brokerage firm Prudential California Realty (Prudential), for whom Hahn worked. The Parkers also named as a defendant Janet M. Olson, a licensed California real estate sales broker doing business as Monarch Properties, whom they had employed to assist them in finding and purchasing "a real property."

The complaint alleged that in June 2001, Julie, "on behalf of her parents," Juel and Darlene, "entered into a contract to purchase the property [at 10050 Fuerte Drive, La Mesa, California 91941 (the Property)] from Winslow for $675,000." On information and belief, the Parkers alleged in paragraph 11 of the complaint that "[a]round July 20, 2001, Winslow [and] Hahn . . . represented [to] Olson and the Parkers that 'portion of lawn area on N.E. corner of property belongs to neighbor. Buyers to satisfy self regarding property lines.' Olson asked Hahn . . . what this meant. Hahn . . . represented to Olson that the 'portion of lawn' area was at the very northeast corner of the Property and was the size of a 'dog run' around 3 x 15 feet. Olson passed this information [on to] the Parkers without investigating its accuracy."

In paragraph 12, the complaint alleged that around December 31, 2001, the Parkers learned that the representations in paragraph 11 were false and that the true facts were:

"a. The 'lawn area' that was part of the fenced backyard of the Property was approximately 4,000 square feet. . . .

"b. The 4,000 square foot area was part of a larger 2/3 acre parcel of unimproved land then owned by William A. Yale and Yvonne M. Yale, Co-Trustees of the Yale Community Property Trust;

"c. The Yales had allowed Winslow, as well as her predecessors-in-interest to the Property, to construct and maintain a fence on the Yales' adjoining property and use approximately 4,000 square feet of that property as part of Winslow's backyard;

"d. In 1997, Winslow, who then owned the property with her former husband, John Gehegan, and [two of ] their neighbors . . . agreed to purchase the 2/3 acre parcel from the Yales for $30,000;

"e. The transaction . . . fell through;

"f. In 1999, 2000, or 2001[,] the Yales had offered to sell the 2/3 acre parcel to Winslow for $15,000, which offer was rejected; and

"g. In 1999, 2000, or 2001, Winslow either obtained or had a survey done of the 2/3 acre parcel owned by the Yales and the area that was fenced in and was being used by her as part of the Property."

The Parkers alleged that another neighbor bought the 2/3 acre parcel from the Yales on December 21, 2001, for $15,000 and that around March 2002 those neighbors revoked the permission that had been granted by the Yales to Winslow to use the fenced in area and removed the fence, so that the Parkers no longer had the use of that 4,000 square foot area.

Based on these allegations, the Parkers stated three causes of action against Winslow for fraud based on intentional misrepresentation in the first cause of action, intentional nondisclosure in the second cause of action, and negligent misrepresentation against her, together with Hahn and Prudential, in the third cause of action. A fourth and fifth cause of action were brought against the Parkers' agent Olson for fraud and constructive fraud.

After filing an amended answer, generally denying all allegations and raising 19 affirmative defenses, Winslow moved for summary judgment, or in the alternative for summary adjudication, arguing Julie had no standing to bring the complaint based solely upon her "attorney in fact" capacity, the complaint was barred by the statute of limitations, and the other plaintiffs (Juel and Darlene) could not establish one or more of the elements of fraud for their three causes of action against her. Winslow specifically asserted that Juel and Darlene could not show that Winslow had made any specific representations as to the extent of the property other than what she disclosed in her four written disclosures; that they could not show the four disclosures were false or that Winslow had any knowledge that they were false; that they could not establish Winslow had an intent to deceive when she made those disclosures regarding the fence or backyard; that they could not show justifiable reliance in light of those disclosures; and that they could not establish any damages. Winslow also claimed that the complaint was barred by the statute of limitations because there was a survey marker on the property readily visible to anyone looking at the backyard.

Declarations and discovery submitted in support of the motion revealed that Winslow had owned the subject property consisting of a 20,908 square foot lot identified as assessor's parcel number 491-660-12-00 for approximately 12 years. At the time she purchased the property, along with her former husband, the previous owners advised her the back fence they had installed enclosed some of the property owned by the Yales which had long been vacant and had been used as a "leach lot." Winslow obtained permission to continue maintaining the fence as it existed at that time and never made any changes to the fence before deciding to sell her property in 2001. Winslow also never ascertained the exact square footage of the Yales' property enclosed by the fence. She denied having any knowledge that the portion of the Yales' property enclosed by the fence was 4,000 square feet and noted that there was a visible survey medallion set in concrete in the backyard marking the true property line and from which the extent of the area belonging to the Yales could be ascertained.

On July 19, 2001, Winslow accepted an offer from Juel and Darlene signed by Julie as "attorney in fact" for them to purchase the 20,908 square foot property. The residential purchase agreement and joint escrow instructions (purchase agreement) advised the Parkers that unless they cancelled the transaction, they had a right to conduct whatever investigations they deemed appropriate, including conducting any surveys to verify the property boundaries within a two-week time frame or they would "conclusively be deemed to have (i) completed all inspections, investigations, and review of reports and other applicable information and disclosures pertaining to that contingency or cancellation right; (ii) elected to proceed with the transaction; and (iii) assumed all liability, responsibility, and expense for repairs or corrections. . . ."

In the real estate transfer disclosure statement (disclosure statement) filled out by Winslow and provided to the Parkers, Winslow responded affirmatively to the questions of whether she was aware of "(2) [f]eatures of the property shared in common with adjoining landowners, such as walls, fences, and driveways, whose use or responsibility for maintenance may have an effect on the property" and "(3) [a]ny encroachments, easements or similar matters that may affect your interest in the subject property?" Winslow explained her affirmative responses were due to the facts that there were "common driveways and [a] portion of back yard is neighbor's property." Her agent Hahn also wrote in one portion of the disclosure statement for the buyers and seller's respective agents to fill out, that a "[p]ortion of lawn area on N.E. corner of property belongs to neighbor. Buyers to satisfy self regarding property line."

Winslow further prepared and provided an addendum of additional disclosures to the Parkers in which she checked "yes" to the questions, "[a]re you aware of any boundary survey other than the original survey," and "[i]s the property fenced?" Winslow explained in the addendum that "[e]ast side fence is on neighbor's property." Winslow also checked spaces stating that fences are located "within property lines" and "within the neighbors' property." The addendum additionally advised the Parkers that it was their responsibility to investigate the property and that it did not relieve the buyers from their "responsibility to make an independent diligent inspection of the property, to hire all necessary inspectors, to provide these inspectors with the . . . Disclosure Statement and this Addendum, and to ask questions that may be pertinent to ensure an informed decision."

The disclosures about the property by Winslow and Hahn in the disclosure statement and addendum were initialed by Julie on behalf of Juel and Darlene as their "attorney in fact." At the conclusion of the sale, title was taken to the 20,908 square foot property in the names of Juel and Darlene, as husband and wife.

The plaintiffs opposed the summary judgment motion, claiming that Julie had standing to sue along with her parents because they were purchasing the property for her and title to the property was taken in their names for "title and credit" only. They also asserted that there were disputed material facts regarding the extent of Winslow's knowledge about the size of the fenced area of her backyard that was owned by the Yales, about whether Winslow and her agent Hahn misrepresented the size of that fenced area, about the falsity of their misrepresentations, about Winslow's intent to induce reliance by the plaintiffs, about whether the plaintiffs justifiably relied on any misrepresentations about the boundaries and size of the property, about whether there were any damages caused by the misrepresentations, and whether the survey marker was readily visible to anyone viewing the property to bar the complaint under the statute of limitations.

In support of these claims, plaintiffs submitted segments of Winslow's February 2006 deposition; declarations from Julie, her husband, and a licensed land surveyor; photographs of the backyard taken in February 2006; correspondence to and from William Yale to Winslow and her former husband, as well as to other neighbors; the letter to Juel and Darlene from a neighbor advising that they had bought the portion of the property formerly owned by the Yales, that they were revoking permission to use that area, and that they were requesting the fence be removed or set back so as not to encroach on their land.

In her declaration, Julie stated that in mid-2001, she had sold a home she had owned in Pacific Beach and had hired Olson to find her and her fianc another residence which her parents were going to help purchase, but that her parents would put the property in their name "for title and credit purposes only." Julie conceded she had signed all the documents to purchase "the home at 10050 Fuerte Drive, La Mesa" as attorney in fact for her parents, who were in Australia during the entire transaction, and that she had received all the disclosures regarding the portion of the backyard belonging to a neighbor in the disclosure statement and addendum. When she was in the backyard with her fianc and Olson shortly after receiving the disclosures, she asked Olson about the references in the disclosures to the portion of the lawn area and queried how large the area was. Julie declared that "Ms. Olson told us she had already talked to Mr. Hahn and said that he had told her the area was the size of a dog run or around 3 x 15 feet, more or less." Julie said that she and her fianc were satisfied with this information and that Olson, Hahn and Winslow never provided them any additional information about the area.^[1]

When Julie received the December 31, 2001 letter from her neighbors addressed to her parents, she learned for the first time that the Yales owned that part of her fenced backyard and the fact that Winslow "had an agreement with [the Yales] to remove the fence at [the Yales'] (or a new owner's) request. . . ." Because she was concerned about the location of the property line before taking down the fence as requested, Julie hired a surveyor to investigate the matter, which cost her $5,683.72. The surveyor showed her "a [tarnished] metal marker in a short concrete wall that is near a hedge and some pool equipment" which she had not noticed until he pointed out to her that it "looked like a brass survey disk that was used by surveyors to mark corners of property." With the surveyor's help, Julie was able to determine "that the portion of what [she] believed was [her] backyard that was owned by the [neighbors] was around 75 by 50 feet and included the avocado and lemon trees that [she] believed were on [her] property. The area is approximately 1/3 of the backyard."^[2]

The correspondence in the opposition papers between William Yale and Winslow and her former husband, and several other neighbors, concerned three undeveloped parcels of land that Yale and his family trust owned adjacent to the Winslow property and other neighbors' properties that at various times from 1990 were for sale. Since October 14, 1982, Yale had had an agreement with Winslow's predecessor in interest to allow the erection of a fence on part of one of those parcels owned by Yale and it was agreed the fence would be removed at any time Yale requested its removal. Yale offered to continue the same agreement with Winslow and her husband when they purchased their home in 1990. Yale declined Winslow's and her husband's offer to purchase one of the parcels in 1990. Although Yale accepted an offer made by Winslow and her husband together with two neighbors to purchase two of Yale's parcels in 1997, that offer and agreement to sell had been mutually cancelled.

In Winslow's deposition, she denied knowing the exact square footage of the Yale property enclosed by the fence in her backyard. Her predecessor in interest had merely pointed out to her the fenced lawn area with an avocado tree and a lemon tree owned by Yale and a survey marker "in front of the pool equipment in the backyard on top of about a two-foot high concrete wall." Winslow remembered that together with the neighbors who were planning to buy a portion of the Yale property, they also had planned to have a survey done. Winslow was unclear whether the company hired to do that survey actually did one, but believed that another survey was done by someone else and that it was in the possession of one of the neighbors, but she did not remember which one. Winslow did not have a copy of any other surveys and explained that the sale did not go through in 1997 because the redrawing of the existing property lines proved to be more complicated than originally thought and because she and her husband "were in the process of getting a divorce."

Winslow filed reply documents, raising evidentiary objections to the declarations in support of the opposition, and to the relevancy and foundation of the photographs taken years after the sale transaction. Winslow also filed a "Disclosure Regarding Residence and Real Property Size" (size disclosure) obtained in discovery from plaintiffs which had been signed on July 26, 2001, by both Julie and her brother as attorneys in fact for Juel and Darlene. The size disclosure specifically stated:

"In the event Buyers [have] been provided by or through the real estate agent for either the Seller or the Buyers, or both, any information concerning the size of the residence (in square footage terms or otherwise) or the real property upon which it is located (including the location of property corners and/or the property dimensions), Buyers acknowledge that such information is an approximation only, has not been independently verified by such agent, has been determined solely by the party identified as the source of that information and may be inaccurate. [] For all of the foregoing reasons, Buyers hereby acknowledge that the Buyers have been advised to independently verify any information regarding the size of the residence and of the property upon which it is situated. Buyers hereby agree to release and hold harmless the Seller and the agents from and against all claims or damages relating to such information."

The court issued a tentative ruling granting Winslow's summary judgment motion, finding there was no triable issue of material fact "to establish that . . . Winslow is liable to plaintiffs on their complaint" and thus Winslow's alternative motion for summary adjudication is moot. In doing so, the court specifically stated:

"As for [Julie], [she] lacks standing to sue to bring the complaint. [] Plaintiffs concede [Julie] signed all documents concerning the transaction to purchase the La Mesa, California home solely in her capacity as an attorney in fact on behalf of her parents, [Juel and Darlene]. As an attorney in fact, [Julie] lacks standing to sue. [Citations.] [] There is no evidence that [Julie] has any legal interest in the subject property. There is no evidence [she] took title to the subject property in her own name. [] [Julie's] status as the daughter of [Juel and Darlene] does not create standing to sue. Moreover, as an attorney in fact who did not take title to the property in her own name and has no legal interest in the property, [Julie] cannot establish that she relied on any misrepresentation by . . . Winslow. [] With respect to [Juel and Darlene], their causes of action in their complaint against . . . Winslow fail given [they] cannot establish an essential element of their causes of action, damages. [] There is no evidence that [Juel or Darlene] suffered any damages based on a misrepresentation or concealment concerning the size of the neighboring property. Plaintiffs' opposition lacks any declaration by [Juel and Darlene]. There is no evidence the property [they] purchased was worth less than what they paid for it. [] The only evidence of damages presented is in [Julie's] opposition declaration at paragraph 11 wherein [she] declares she hired a surveyor. The Court disregards this assertion given [she] lacks standing to sue. [] [Juel and Darlene's] causes of action in their complaint against Winslow fail for another reason as well. [] There is no evidence of any reasonable reliance by [Juel and Darlene] upon any alleged misrepresentation or concealment by . . . Winslow concerning the size of the neighboring property. [] In fact, plaintiff[s'] opposition concedes . . . Winslow made at least four separate written disclosures with respect to the property line and fence in the backyard. [Citations.] [] Moreover, plaintiffs' opposition concedes the operative contracts informed [Juel and Darlene] to obtain whatever surveys or conduct whatever investigation they deemed appropriate. [Citations.]"

The court found that "[a]ny evidence cited in support of the Court's ruling [above was] deemed admissible and any objection made to that evidence [was] considered overruled." The court essentially disregarded the remaining evidence as incompetent or inadmissible and declined to further rule on specific objections to evidence not relevant to its decision.

Following oral argument on March 24, 2006, the tentative ruling became the order of the court and a formal written order granting Winslow's summary judgment motion and judgment in her favor was filed May 24, 2006. Notice of entry of judgment in Winslow's favor was filed May 31, 2006, and this appeal followed.^[3]

DISCUSSION

Because plaintiffs appeal from the judgment entered after the trial court granted Winslow's summary judgment motion, we review the court's ruling on the motion de novo. (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819.) In doing so we "apply the same rules and standards that govern a trial court's determination of a motion for summary judgment. [Citation.]" (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1258.) Summary judgment should be granted if "all the papers submitted show that there is no triable issue of material fact and . . . the moving party is entitled to judgment as a matter of law." (Code Civ. Proc.,  473c, subd. (c).)

To satisfy this burden, a moving defendant is not required to "conclusively negate an element of the plaintiff's cause of action. . . . All that the defendant need do is to 'show[] that one or more elements of the cause of action . . . cannot be established' by the plaintiff. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 (Aguilar).) Once this defendant's burden is met, the "burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists . . . ." (Code Civ. Proc.,  437c, subd. (p)(2).) In opposing the motion, "[t]he plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . ." (Ibid.; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 234.)

In performing our de novo review, we view the evidence in the light most favorable to the plaintiff, liberally construing the plaintiff's submissions while strictly scrutinizing the defendant's showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We are not bound by the trial court's stated reasons for its ruling on the motion, as we only review the ruling and not its rationale. (Muller v. Automobile Club of Southern California (1998) 61 Cal.App.4th 431, 438-439; disapproved on another point in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) "Summary judgment will be upheld when, viewed in such a light, the evidentiary submissions conclusively negate a necessary element of plaintiff's cause of action, or show that under no hypothesis is there a material issue of fact requiring the process of a trial, thus defendant is entitled to judgment as a matter of law. [Citation.]" (ThompsonSacramentoCity Unified School Dist. (2003) 107 Cal.App.4th 1352, 1360-1361.)

Here, the plaintiffs' position on appeal is essentially the same as below. They claim the court erred in finding that Julie has no standing to prosecute this action, in finding that there were no disputed material facts as to damages, and in finding that their reliance was unreasonable as a matter of law in light of the actual disclosures made about the size of the backyard of Winslow's property in this case. The plaintiffs argue that, similar to the situation in Manderville, supra, 146 Cal.App.4th 1486, the real estate form disclosures in this case preclude any finding that justifiable reliance cannot be found as a matter of law, and that triable issues of fact remain as to Winslow's misrepresentations and nondisclosures as well as to her intent in the transaction. In addition, the plaintiffs contend the trial court improperly found they could not prove they had been damaged when it was Winslow's initial burden to produce evidence showing plaintiffs had suffered no out-of-pocket damages.

As we explain, the trial court correctly determined upon the competent evidence presented in this case that Julie does not have standing to prosecute the action on her own behalf and that the other plaintiffs cannot show any damages or any basis for justifiable reliance, and accordingly, properly granted Winslow's summary judgment.

I

STANDING TO SUE

With regard to whether the trial court correctly found that Julie had no standing to prosecute this action, we note that Code of Civil Procedure section 367 (all further statutory references are to the Code of Civil Procedure unless otherwise noted) provides that "[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute." Subdivision (a) of section 369 further provides that "[t]he following persons may sue without joining as parties the persons for whose benefits the action is prosecuted: [] (1) A personal representative, as defined in subdivision (a) of Section 58 of the Probate Code. [] (2) A trustee of an express trust. [] (3) Except for a person upon whom a power of sale has been conferred pursuant to a deed of trust or mortgage, a person with whom, or in whose name, a contract is made for the benefit of another. [] (4) Any other person expressly authorized by statute." Subdivision (b) of section 369 provides that notwithstanding subdivision (a), "a trustee upon whom a power of sale has been conferred pursuant to a deed of trust or mortgage may sue to exercise the trustee's powers and duties pursuant to Chapter 2 . . . of Title 14 of Part 4 of Division 3 of the Civil Code." The code commissioners note 12 to section 369, however, provides that "[o]ne who is described in an instrument, whether parol or special, as the attorney in fact of another, does not hold the character of trust, and is not a necessary party to represent the interest of the principal." (Powell v. Ross (1854) 4 Cal. 197.)

In this regard, it is well established that a party claiming to have standing must generally assert her own legal rights and interests, and cannot rest any claim to relief upon the legal rights or interests of a third party (Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132 Cal.App.4th 666, 672), or that she be able to show she has some beneficial interest in the controversy that is "concrete and actual, and not conjectural or hypothetical." (Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 315.) Generally, the person possessing the right sued upon by reason of substantive law is the real party in interest. (Del Mar Beach Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d 898, 906.) Thus, in Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, the court held that the plaintiff there could not maintain the action because it did not have an interest in the real property at issue in that case other than as the holder of a special power of attorney to bid on the property. (Id. at pp. 580-581.) The holder of legal title is presumed to own beneficial interest in property held in his or her name, and the presumption can only be overcome by clear and convincing evidence. (Livernois v. Brandt (1964) 225 Cal.App.2d 301, 306.)

Here, there was none. Julie did not allege any facts in the unverified complaint to show that she was a real party in interest with the right to maintain this action. The complaint merely alleged that she had entered into the contract to buy the subject real property from Winslow "on behalf of her parents." Although Julie stated in her declaration that her "parents agreed to help [her fianc and her] purchase a home for us, but the property would be in my parents' name--for title and credit purposes only," Julie did not submit any evidence to show any such agreement with her parents. Nor did she provide any evidence to show that her parents had gifted or assigned the property to her and her fianc at that time, or that she paid for any portion of the purchase price in her individual capacity.

As the trial court noted at the oral argument on the summary judgment motion, the complaint did not allege any beneficial interest or "equitable ownership" in the property by Julie. In addition to the lack of declarations from her parents to show that she had any such interest in the property, the record evidence showed that Julie had signed all the documents in the real estate transaction as "attorney in fact" for her parents and that the title to the property was taken only in their names. When the court pointed out these facts, Julie's attorney agreed and merely argued that even if she had no equitable interest, she was acting as her parents' agent and as such should be able to prosecute this action. Julie, however, did not allege such agency or the fact she was prosecuting the action only for her parents. Nor did she seek to amend the complaint to allege such relationship.

Based on these circumstances and our independent review of the record before the trial court for the summary judgment motion, we agree with the court's conclusion that Julie could not bring this action in her own name and properly granted summary judgment as against her on the causes of action against Winslow.

II

SUMMARY JUDGMENT AS TO JUEL AND DARLENE PARKER

Plaintiffs also contend the trial court erred in granting summary judgment as to Juel and Darlene because it incorrectly found they could not establish damages, an essential element of their three causes of action based on intentional and negligent misrepresentations or concealment of facts, and it improperly determined there was no basis for the element of justifiable reliance. We again agree with the trial court.

A. Pertinent General Principles

It is well established that to succeed on claims involving fraud in real estate transactions based on intentional misrepresentation as alleged in the first cause of action and intentional nondisclosure as alleged in the second cause of action, it must be shown that the defendant made: (1) a false representation or a nondisclosure (concealment) of material facts affecting the value or desirability of the property; (2) with knowledge of its falsity or knowledge that such fact could not reasonably be discovered; (3) with intent to defraud or deceive, i.e., to induce reliance. Further, plaintiffs must show justifiable reliance on the misrepresentation or resulting from the nondisclosure, and resulting damages. (Civ. Code,  1572, 1709; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 (Engalla).)

To prevail on a claim of negligent misrepresentation as alleged in the third cause of action, it must be shown that there was: "(1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed; and (5) [resulting] damages. [Citation.]" (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.)

1. Damages

Each of these three causes of action alleged by plaintiffs is a variety of deceit or actual fraud having an essential element "that the plaintiff has been damaged as a result of the defendant's misrepresentation or concealment of fact. [Citations.]" (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1542 (Saunders).) Without such damages, an alleged fraud is not actionable. (Building Permit Consultants v. Mazur (2004) 122 Cal.App.4th 1400, 1415.)

The general test in determining the existence and extent of such damage in situations involving the sale of property is prescribed by statute: "One defrauded in the purchase, sale or exchange of property is entitled to recover the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received . . . ." (Civ. Code,  3343, subd. (a).) To satisfy this test, a buyer claiming fraud in the sale of property must generally provide evidence showing that the price he or she paid for the property was greater than the actual value of the property. (Saunders, supra, 42 Cal.App.4th at p. 1543.) "Actual value" as used in this context generally means the fair market value of the property. (Bagdasarian v. Gragon (1948) 31 Cal.2d 744, 752.) The fair market value is the price a willing buyer would pay to a willing seller, when neither is under the compulsion to buy or sell and both have knowledge of the pertinent facts (Estate of Webb (1966) 241 Cal.App.2d 85, 91), and the actual price paid by a willing buyer to a willing seller is the most accurate gauge of the fair market value. (Forty-Niner Truck Plaza, Inc. v. Union OilCo. (1997) 58 Cal.App.4th 1261, 1282.)

2. Justifiable Reliance

As noted above, justifiable reliance is another required element in actions for fraud based on intentional and negligent misrepresentation as well as actions for nondisclosure. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239, fn. 4 (Alliance).)^[4] As our Supreme Court has explained, "[r]eliance exists when the misrepresentation or nondisclosure was an immediate cause of the plaintiff's conduct which altered his or her legal relations, and when without such misrepresentation or nondisclosure he or she would not, in all reasonable probability, have entered into the contract or other transaction. [Citations.]" (Ibid.) Moreover, in a real estate action "a buyer is [generally] entitled to rely upon a seller's representations concerning the area of the property being sold, and is not required to hire an expert to discover the falsity of the seller's representations. [Citations.] On the other hand, a buyer is not relieved of 'the duty to exercise reasonable care to protect himself or herself, including those facts [sic] which are known to or within the diligent attention and observation of the buyer' [citation]; and a buyer is held to be aware of obvious and patent conditions. [Citations.]" (Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1079.) Although whether a buyer reasonably relied on a seller's misrepresentations or unreasonably failed to protect himself or herself and unjustifiably failed to discover the true conditions in light of the circumstances is ordinarily an issue for the trier of fact (id. at pp. 1078-1079), " 'whether a party's reliance was justified may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts.' [Citation.]" (Alliance, supra, 10 Cal.4th at p. 1239.)

The court in Alliance further explained that " '[n]egligence on the part of the plaintiff in failing to discover the falsity of a statement is no defense when the misrepresentation was intentional rather than negligent.' [Citation.] 'Nor is a plaintiff held to the standard of precaution or of minimum knowledge of a hypothetical, reasonable man.' [Citation.] 'If the conduct of the plaintiff in the light of his own intelligence and information was manifestly unreasonable, however, he will be denied a recovery.' [Citations.]" (Alliance, supra, 10 Cal.4th at pp. 1239-1240, italics added.)^[5]

B.Analysis

As to the issue of damages, Winslow produced evidence showing that in July 2001, the plaintiffs paid her $675,000 as willing buyers of her 20,908 square foot lot and that as the willing seller she transferred to the plaintiffs, and they received, the 20,908 square foot lot. This evidence supports an implied finding that the $675,000 price paid for the property equaled the fair market value or "actual value" of the property in June 2001 which was contracted for by the plaintiffs. (See Saunders, supra, 42 Cal.App.4th at p. 1543.) The plaintiffs conceded that the legal description contained in the grant deed to the property conveyed the entire 20,908 square foot lot. Because the plaintiffs received the same value of property as that which they contracted and paid for, they are not entitled to recover any damages. (Civ. Code,  3343, subd. (a).)

Contrary to plaintiffs' assertion that they relied upon the backyard that they "saw" and thought they were getting a larger sized yard despite Winslow's disclosures that part of the backyard was owned by a neighbor, the easterly fence was within the neighbor's property, and she was selling only her 20,908 square foot lot, the evidence reflects the plaintiffs received the exact square footage of real estate that they bargained for. Plaintiffs have failed to submit any evidence showing the legal lot size changed between the time they offered to purchase Winslow's property and the close of escrow. Nor have they presented any documents showing that the lot was more than 20,908 square feet or that there were any oral representations by Winslow that the lot contained more than that amount of square footage. Plaintiffs simply have not presented any evidence to show that the value of the property was less than the amount they paid for it.

The plaintiffs' unverified complaint merely alleges they were damaged because they "no longer have use of the 4,000 square foot area." However, regardless of the exact size of that area belonging to the neighbor, the plaintiffs had no legal entitlement to that property which was not part of the 20,908 square foot lot which they bought from Winslow. Plaintiffs have submitted no evidence to show that Winslow represented to them that they would have continued use of the area belonging to the neighbor, which she had disclosed, or that there was any recorded easement or other legal document giving them the right to use that area indefinitely. Because plaintiffs obtained everything they were legally entitled to at the time of their purchase, they cannot show that they suffered any out-of-pocket losses.

To the extent Julie claims the plaintiffs were damaged by her having to hire and then pay a surveyor $5,683.72 to establish the true property line and area belonging to the neighbor when she was asked to remove the fence in 2002, we note again that Julie was not a real party in interest to the real estate transaction with Winslow and thus her own costs are irrelevant to show that the other plaintiffs were somehow damaged by Winslow's alleged misrepresentations or concealments. No declarations or other evidence have been submitted from Juel and Darlene to show Julie was acting on their behalf in hiring the surveyor. Nor do we believe those monies are consequential damages arising from the alleged fraud. Julie and the plaintiffs had notice at the time of the sale that the fence the new neighbors later asked to be removed was on part of the old neighbor's property. The survey was conducted because Julie was then concerned about taking down the fence and the neighbor's letter did not identify the location of the property line, and not due to any alleged fraud.

Further, even if the double hearsay oral representations by Julie's agent to Julie about what Winslow's agent told Julie's agent about the fenced-in property area belonging to the neighbor being the size of a dog run "more or less" are considered, because Winslow did not make such alleged affirmative misrepresentation, and the real estate contract and disclosures provided that there were no oral representations made other than those contained in the contracts and disclosures, Winslow is essentially an innocent seller and the sole remedy against her for the buyer would be for rescission of the sale contract and a return of the consideration paid and not damages. (See Herzog v. Capital Co. (1945) 27 Cal.2d 349, 353; Lingsch v, Savage (1963) 213 Cal.App.2d 729, 737.) Plaintiffs did not seek rescission of the contract in their complaint or request that the complaint be amended to allege such cause of action and remedy.

With regard to the element of justifiable reliance for the alleged fraud by Winslow in this case, we believe this is the rare case where reasonable minds can only come to one conclusion based on the facts; i.e., that the plaintiffs could not justifiably rely on the purported multiple hearsay statement of Hahn to Olson to Julie regarding the size of the neighbor-owned area included in Winslow's fenced backyard in light of all the written disclosures and the failure of the plaintiffs to exercise due care to investigate further based on the disclosures. (See Alliance, supra, 10 Cal.4th at p. 1239.) As noted above, in addition to the standard real estate form advisements to conduct investigations, including surveys to verify property boundaries, seek assistance from other desired professionals, and to exercise reasonable care to satisfy themselves regarding the size of the real property, Winslow specifically disclosed that a portion of the backyard "is neighbor's property," and "east side fence is on neighbor's property." Winslow's agent Hahn disclosed that "portion of lawn area on N.E. corner of property belongs to neighbor. Buyers to satisfy self regarding the property line." Despite such disclosures, Julie and the other plaintiffs did not ask the identity of the neighbor who owned the property or whether there were any agreements or restrictions regarding such area. Nor did plaintiffs do any search regarding the backyard property line or ask to be shown any documents or surveys regarding the area not owned by Winslow included inside her yard.

As Winslow points out in her respondent's brief, "[i]f the size of the backyard was a fact at all significant to the [plaintiffs'] decision to purchase the residence, the Release and all the other advisories/disclosures would have caused [them] to ask further questions, conduct a more thorough investigation, consult public records[], obtain solid answers and/or documentation confirming the size of the yard." (See Hinesley v. OakshadeTownCenter (2005) 135 Cal.App.4th 289, 300-304.)

In addition, even though plaintiffs had the disclosures and releases mentioned above, they obtained nothing in writing showing or confirming the size of the neighbor's property. Plaintiffs admitted that neither Winslow nor Hahn represented the backyard "as being a specific size in square feet." There is simply no evidence offered that when plaintiffs made their offer to purchase Winslow's property they relied on receiving a larger square footage lot than the 20,908 square foot lot they received. Nor was there any evidence presented to show that plaintiffs asked any questions of Winslow as to the continued use of the portion of her backyard belonging to the neighbor or that Winslow ever misled the plaintiffs into believing she was the owner of all the property that they saw in the backyard. Thus under the undisputed facts in this case, reasonable minds can only come to one conclusion--that plaintiffs' alleged reliance was not justified.

Nevertheless, plaintiffs claim that they relied on the multiple hearsay representations that the area owned by the neighbor was about the size of a 3 x 15 foot dog run, more or less, allegedly told to Julie and her fianc by plaintiffs' real estate agent (Olsen), who had purportedly been told such by Hahn, Winslow's agent. Tellingly missing from their opposition evidence to the summary judgment motion, however, is any declaration from Olsen, who was reportedly the recipient of the information precluded. No other purportedly affirmative representations as to size of the property by Winslow or her agent to the plaintiffs is alleged or supported by any evidence.

Additionally, plaintiffs appear to claim that the numerous letters regarding the property and Winslow's former dealings with her husband to purchase the property in 1987 from the neighbor owning the disputed portion somehow evidence her concealment of material facts in the purchase transaction. Plaintiffs, however, have not presented any competent evidence to show that such earlier dealings would have made a difference in their decision to purchase the property. Nor have they shown that such additional information was material in light of Winslow's other disclosures that already made them aware part of her backyard actually belonged to a neighbor. A seller need only make the buyer aware of the basic problem [with the property] and need not provide all the specific details thereof, or every document relating to that problem. (Pagano v. Krohn (1997) 60 Cal.App.4th 1, 9-10.) Once, as here, Winslow had disclosed the material facts that she knew concerning the property, she did not have a further duty to disclose the impact, effect or ramification of that information. (Id. at pp. 10-11.)

Moreover, although we are aware that in our recent decision in Manderville, supra, 146 Cal.App.4th 1486, we held that the standard real estate form exculpatory clauses used in that case could not support a trial court's ruling on summary judgment that as a matter of law buyers "cannot make a prima facie showing that they justifiably relied on [a broker's] alleged intentional misrepresentations" (id. at pp. 1489, 1502), we also recognized that in the appropriate factual context justifiable reliance may still exist as a matter of law. (Id. at p. 1499.) And, although we are faced with several form releases or exculpatory clauses in this case, we do not base our decision solely on those clauses as the trial court had done in Manderville. The type of disclosures and contractual provisions at issue in this case, as well as the facts, are completely different than those involved in Manderville.

In Manderville there were alleged oral misrepresentations about whether a lot could be split made to the buyers by the seller's broker and also made by the broker in writing in the MLS listing for the property, and declarations that the buyers bought the property in reliance on those false allegations and that they would not have purchased the property had they known the actual facts that the property could not legally be split. (Manderville, supra, 146 Cal.App.4th at pp. 1494-1496.) As already noted, there were four separate written disclosures here advising the plaintiffs that: a "portion of the back yard is neighbors' property," "portion of lawn area on the N.E. corner of property belongs to neighbor, "Buyers to satisfy self regarding property line," "East side fence is on neighbor's property," and Winslow answered "yes" to several questions regarding knowledge of boundary line issues, encroachments and/or surveys. Not all of these written disclosures were exculpatory provisions as in Manderville. Even without considering the so-called exculpatory provisions in the contract which advised plaintiffs as buyers of their due diligence rights and their express waiver of any claims relating to representations as to the size of the property, the written disclosures by Winslow are properly considered in determining whether plaintiffs were justified in relying upon the alleged double hearsay statement of Hahn, which was the only purported affirmative misrepresentation by him attributed to Winslow. (See Manderville, supra, 146 Cal.App.4th at p. 1497, fn. 3.)

The court below in this case looked at the undisputed fact that the plaintiffs did nothing to confirm the actual location of the property line despite the undisputed written disclosures Winslow and Hahn made. The alleged reliance by Julie on the double hearsay statement is not credible evidence in light of those disclosures and her own declaration, which does not state she changed her position in any way as a result of those alleged misrepresentations or that she would not have purchased the property as attorney in fact for her parents had she known the true size of the area owned by the neighbor. In fact, the plaintiffs admit in their reply brief that they cannot, and do not intend to, provide any evidence that they altered their legal position based upon the alleged misrepresentations or nondisclosures. Plaintiffs merely argue that "it would be inadmissible speculation" to allege that they would not have entered the real property purchase agreement in 2001 because they cannot now state what they would have done then with additional information. Without being able to allege such a change of position and/or that they would not have purchased the subject property as a result of the alleged nondisclosures and/or misrepresentations, as a matter of law the plaintiffs cannot establish justifiable reliance.

In sum, contrary to plaintiffs' contentions, our independent review shows the trial court properly found that Julie has no standing to bring this action in her name and the essential elements of damages and justifiable reliance cannot be established by Juel and Darlene Parker for the alleged fraud by Winslow on this record. Therefore, the trial court properly granted Winslow's summary judgment motion and entered judgment in her favor.

DISPOSTION

The judgment is affirmed. Costs are awarded to Winslow on appeal.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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^[1] The declaration submitted by Julie's then fianc and now husband stated the same information as to what Olson had told them.

^[2] The surveyor's declaration confirmed Julie had paid him $5,683.72, and that based on the survey disk he had found that the fenced part of Julie's backyard totals "3,353 square feet or .08 acres of property owned by [the neighbors]."

^[3] Neither Hahn nor Olson joined in Winslow's summary judgment motion and thus are not parties to the judgment granted and entered as to Winslow. Hahn and Olson are therefore also not parties to this appeal.

^[4] California authorities refer to the reliance element of a fraud or deceit cause of action as both "reasonable reliance" and "justifiable reliance." (See, e.g., CACI No. 1900 ["reasonabl[e]" reliance]; Engalla, supra, 15 Cal.4th at p. 974 ["justifiable" reliance]; and Alliance, supra, 10 Cal.4th at p. 1239 [both "reasonable" and "justifiable" reliance].)

^[5] Winslow has asked this court to take judicial notice of documents showing that Julie has been an attorney licensed to practice law in California since 1991 for purposes of assessing the reasonableness of any reliance in this case. We decline to do so. Such fact was not presented to the trial court for its consideration in ruling on the summary judgment motion.