SOIFER v. CHICAGO TITLE COMPANY



















Filed 8/10/10













CERTIFIED FOR
PUBLICATION







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION THREE






>

BEN SOIFER, Plaintiff and Appellant, v. CHICAGO TITLE COMPANY et al., Defendants and Respondents.

B217956 (Los Angeles County Super. Ct. No. BC405970)

Appeal from a judgment of the Superior Court of Los Angeles
County, Ann I. Jones, Judge. Affirmed.

Kneafsey, Tostado &
Associates, Sean M. Kneafsey and Shaun Swiger for Plaintiff and Appellant.

Glaser, Weil, Fink,
Jacobs, Howard & Shapiro, Joel N. Klevens and Diane K. Myint for
Defendants and Respondents.



_______________________________________

In
this case, the plaintff and appellant, Ben Soifer, appeals a judgment entered
after the trial court sustained a demurrer to his first amended complaint without leave to
amend. In Southland Title Corp. v. Superior Court (1991) 231 Cal.App.3d 530 ( >Southland), we held that a title company
could not be held liable for the negligent preparation of a preliminary report
of title. Rather, if a representation
was sought from the title company as to the condition of the title to a
particular property, an abstract of title should have been obtained. Here, plaintiff neither sought, obtained nor
desired a policy of title insurance or an abstract of title, but
nonetheless seeks to hold the respondent, Chicago Title Company (Chicago),
liable in both tort and contract for alleged negligence and misrepresentations
with respect to the seniority status of encumbrances on certain properties that
were in the process of trust deed foreclosure.

We
adhere to our analysis in Southland
and extend and apply it here to the several claims asserted by plaintiff. We hold that a plaintiff cannot recover for
errors in a title company's statements regarding the condition of title to a
property in the absence of a policy of title insurance or the purchase of an
abstract of title. We therefore will
affirm the judgment.

>FACTUAL
AND PROCEDURAL BACKGROUND

As
this case comes to us on demurrer, we accept as true the facts alleged by
plaintiff in his complaint. ( >Blank v. Kirwan (1985) 39 Cal.3d
311, 318.)

Essentially,
plaintiff alleges that in late 2007, he was an investor in distressed real
estate. His business plan involved the
purchase of real properties that were being foreclosed upon by mortgage
holders. In order to decide whether to
bid on a particular property, he needed to know if the foreclosing lender was
in fact the senior lender on that property.
Put another way, if he made a successful bid at a foreclosure sale and
the foreclosing lender held a secured position junior to other more senior
liens, then plaintiff's title would be subject to such liens.

In
order to avoid such a result, plaintiff alleges that he entered into an oral
agreement with Chicago's agent, Miguel Escutia, in which it was agreed that
Escutia, on behalf of Chicago, would provide title information upon which
plaintiff would rely in deciding whether to make a bid at a particular
foreclosure sale. In exchange, plaintiff
alleges that he agreed that he would place business with Chicago
upon the subsequent resale of the foreclosed properties. The information that plaintiff wanted from Chicago
was limited, specific and time sensitive.
He needed, usually within twenty-four hours before a particular
foreclosure sale, a â€