Integrity Escrow v. Flagstar Bank

 

 

 

 

 

 

 

 

 

 

 

Filed 11/19/13  Integrity Escrow v. Flagstar
Bank CA4/3

 

 

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

INTEGRITY ESCROW, INC.,         Plaintiff and Appellant,               v.   FLAGSTAR BANK, FSB,         Defendant and Respondent.

G047937            (Super. Ct. No. 30-2011-00448747)            O P I N I O N

 

                        Appeal
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Franz E. Miller, Judge.  Affirmed.

                        Stocker & Lancaster
and Michael J. Lancaster for Plaintiff and Appellant.

                        Palmer, Lombardi &
Donohue, Roland P. Reynolds and Alison R. Kalinski for Defendant and
Respondent.

*               
*                *

 

Introduction

Mortgage
lender Flagstar Bank, FSB (Flagstar), decided in early 2011 to make licensed
escrow agent Integrity Escrow, Inc. (Integrity), ineligible to do business with
Flagstar.  Flagstar included Integrity’s
name on a list of ineligible escrow agents; the list was made available to the
mortgage brokers with whom Flagstar does business.  Flagstar also told one mortgage broker that
Flagstar had “blacklisted” Integrity.

Integrity
sued Flagstar for intentional interference with contractual relations and with prospective
economic advantage, unfair business practices, and defamation.  The trial court granted Flagstar’s motion for
summary judgment.  We conclude there was
no triable issue of material fact as to any of Integrity’s causes of action
against Flagstar, and Flagstar was entitled to judgment against Integrity as a href="http://www.fearnotlaw.com/">matter of law.  

In
brief, the claim for intentional interference with contractual relations fails
because Integrity did not produce evidence of the requisite contracts.  The claims for intentional interference with prospective
economic advantage and defamation fail because the evidence shows Flagstar’s
actions were privileged (in accord with uniform federal cases facing the same
issue), and Integrity failed to show malice. 
Finally, the evidence does not support the unfair business practices
claim, under any theory advanced by Integrity. 
We therefore affirm the judgment.

 

Statement of Facts and Procedural History

Flagstar
is a federal savings bank and mortgage lender, based in Troy,
Michigan. 
It funds residential mortgage loans secured by properties in California,
as well as in other states.  Flagstar
enters into agreements with mortgage brokers, allowing those brokers to submit
loan applications on behalf of the brokers’ borrower‑clients.  If approved, Flagstar makes loans directly to
the borrower-clients.  The mortgage loan
transactions are completed by escrow agents. 
Flagstar maintains a list of eligible escrow agents with which it will
do business, as well as a list of ineligible escrow agents with which it will
not do business.  Flagstar maintains the
lists to minimize its risk of exposure to fraudulent transactions.  The lists of eligible and ineligible escrow
agents are available on Flagstar’s password‑protected Web site, and
can only be viewed by Flagstar employees and Flagstar-approved mortgage
brokers.

Integrity
is an escrow agent licensed to do business in the State of California.  Before January 2011, Integrity was on the
list of escrow agents eligible to do business with Flagstar. 

Optimum
First Mortgage (Optimum) is a mortgage broker. 
Optimum and Integrity had an oral agreement that Optimum would refer at
least 25 percent of its refinance escrows to Integrity.  Flagstar began an investigation of Optimum
when Flagstar discovered an altered employment verification in a loan
application (which verification was ultimately proven to be false) and
unexplained cash payments.  Flagstar
reviewed 20 loans brokered by Optimum, all of which had used either
Integrity or Complete Escrow Service Corporation (Complete) as the escrow
agent.  During the investigation,
Integrity’s status was changed from eligible to ineligible to do business with
Flagstar.  Integrity failed to respond to
Flagstar’s requests to review its files, and Integrity’s ineligible status was
made permanent due to its failure to cooperate, in or about January 2011.  (Complete’s status was also changed to
ineligible.)

Flagstar
updated its Web site to reflect Integrity’s ineligible status.  On January 19, 2011, Flagstar advised Optimum
that Integrity’s status had been changed to ineligible, and further advised
Optimum that it would not fund any loans on which Integrity was the escrow
agent.  As of that time, Integrity had been
referred by Optimum as the escrow agent for 16 mortgage loans that were going
to be funded by Flagstar.  Each of those
escrows was transferred from Integrity to another escrow agent.  Integrity would have realized a fee of $560
on each of those escrows, for a total claimed loss of $8,960.  Integrity also claimed damages for other
escrow business it did not receive from Optimum and other mortgage brokers
because those brokers were seeking to obtain funding from Flagstar and,
therefore, could not use Integrity as the escrow agent due to its ineligible
status with Flagstar.

Integrity
sued Flagstar for intentional interference with contractual relations,
intentional interference with prospective economic advantage, unfair business
practices, and defamation.  Flagstar
moved for summary judgment or, in the alternative, summary adjudication of each
of the causes of action.  The trial court
granted the motion for summary judgment, and entered judgment in favor of
Flagstar.  Integrity timely appealed.  (Complete also sued Flagstar, and Flagstar
also filed a motion for summary judgment or, in the alternative, summary
adjudication, against Complete’s causes of action.  The judgment entered against Complete is the
subject of a separate appeal, Complete
Escrow Service Corporation v. Flagstar Bank, FSB, No. G047905.)

 

Discussion

I.

>Standard
of Review

We review an order granting summary judgment de novo.  (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th
763, 767; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35.)  A motion for summary judgment is properly
granted if the moving papers establish there is no triable issue of material
fact and the moving party is entitled to judgment as a matter of law.  (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826,
843.)  “To prevail on the motion,
a defendant must demonstrate the plaintiff’s cause of action has no merit.  This requirement can be satisfied by showing
either one or more elements of the cause of action cannot be established or
that a complete defense exists.  [Citations.] 
If the defendant meets this requirement, the burden shifts to the
plaintiff to demonstrate a triable issue of material fact exists.  [Citations.]” 
(We Do Graphics, Inc. v. Mercury Casualty Co. (2004) 124 Cal.App.4th 131, 135-136.) 

We review the trial court’s evidentiary rulings
for abuse of discretion.  (>Ceja v. Department of Transportation
(2011) 201 Cal.App.4th 1475, 1481.) 


 

II.

Intentional Interference with Contractual
Relations

“The elements of a cause of action for
interference with contractual relations are: (1) the existence of a valid
contract between the plaintiff and a third party; (2) the defendant’s
knowledge of this contract; (3) the defendant’s intentional acts designed
to induce a breach or disruption of the contractual relationship;
(4) actual breach or disruption of the contractual relationship; and
(5) resulting damages. 
[Citation.]  Proof the interfering
conduct was wrongful, independent from the interference itself, is not required
to recover for interference with contractual relations.  [Citation.]” 
(Sole Energy Co. v.
Petrominerals Corp. (2005) 128 Cal.App.4th 212, 237-238.)

Integrity’s second amended complaint alleged the
existence of 16 “existing escrow agreements and economic relationships” with
which Flagstar allegedly interfered.  In support
of the motion for summary judgment, Flagstar offered admissible evidence that
there were no enforceable contracts with respect to the 16 escrow agreements
because none of the potential borrowers had signed the escrow instructions.  “[A] cause of action for intentional
interference with contract requires an underlying enforceable
contract. . . . The tort of interference with contractual
relations protects an existing, formally cemented economic relationship.”  (PMC,
Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 601, original
italics.) 

In
opposition, Integrity offered no evidence that any enforceable contracts
existed; indeed, in its objections to the admission of each of the unsigned
escrow instructions, Integrity stated:  “Flagstar
caused the termination of this escrow before
it was fully executed.”  (Italics
added.)href="#_ftn1" name="_ftnref1" title="">[1]
 In neither of its appellate briefs does
Integrity argue the 16 escrows were the subject of executed, enforceable
contracts.  There was no admissible
evidence that a triable issue of material fact existed as to a necessary
element of the claim, and the trial court correctly determined Flagstar was
entitled to summary judgment on the cause of action for intentional
interference with contractual relations.href="#_ftn2" name="_ftnref2" title="">[2]

 

III.

Intentional Interference with Prospective
Economic Advantage

“The elements
of a cause of action for interference with prospective economic advantage are:  (1) an economic relationship between the
plaintiff and a third party, with the probability of future economic benefit to
the plaintiff; (2) the defendant’s knowledge of the relationship;
(3) the defendant’s intentional and wrongful conduct designed to interfere
with or disrupt this relationship; (4) interference with or disruption of
this relationship; and (5) economic harm to the plaintiff proximately
caused by the defendant’s wrongful conduct. 
[Citation.]  [¶] To establish
intentional interference with prospective economic advantage, a plaintiff must
plead and prove the defendant ‘engaged in conduct that was wrongful by some
legal measure other than the fact of interference itself.’  [Citation.] 
An 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.’ 
[Citation.]”  (>Sole Energy Co. v. Petrominerals Corp., >supra, 128 Cal.App.4th at p. 241.)

In its cause of action for intentional
interference with prospective economic advantage, Integrity alleged Flagstar
interfered with its prospective contracts with the 16 escrows discussed >ante, as well as with Integrity’s
relationships with Optimum and other mortgage brokers that allegedly refused to
do business with Integrity after it was placed on Flagstar’s ineligible list.

Flagstar offered admissible evidence that the
only conduct by which it had allegedly interfered with Integrity’s business was
placing Integrity on its ineligible list. 
Integrity did not offer any admissible evidence disputing Flagstar’s
argument that, in the absence of any contractual arrangement between Flagstar
and Integrity, Flagstar had the right to decide with whom it would do
business.  (See Kasparian v. County of Los Angeles (1995) 38 Cal.App.4th 242, 266 [“If
a party has no liability in tort for refusing to perform an existing contract,
no matter what the reason, he or she certainly should not have to bear a burden
in tort for refusing to enter into
a contract where he or she has no obligation to do so”]; Overland P.
Co. v. Union L. Co. (1922) 57 Cal.App. 366, 370-371 [“It is the right of
every man to engage to work for or to deal with, or to refuse to work for or to
deal with, any man or class of men as he sees fit, whatever his motive or
whatever the resulting injury, without being held in any way accountable
therefor.  [Citations.] These rights may
be exercised in association with others so long as they have no unlawful object
in view”]; Klamath-Lake Pharm. v. Klamath
Med. Serv. Bureau (9th Cir. 1983) 701 F.2d 1276, 1292 [business
arrangement “was simply an exercise of its freedom to contract with whomever it
chose in order to sustain itself in the marketplace”]; Klamath-Lake Pharm., supra,
at p. 1292, fn. 16 [“This freedom extends to the manufacturer who for
any lawful reason terminates one distributor or supplier and puts another in
its place, even if the terminated businessman is put out of business”].) 

Integrity admits the truth of this rule of law in
its opening brief on appeal, where it asserts: 
“You can cho[o]se not to do business with someone.  However, you cannot tell everyone in the
neighborhood they can’t do business with the person you chose not to do
business with.”  The fallacy in this
argument is that Integrity failed to offer any admissible evidence that
Flagstar told anyone not do business with Integrity.  The undisputed evidence shows Flagstar
advised mortgage brokers, including Optimum, that Flagstar would no longer do
business with Integrity.  Any mortgage
broker remained free to use Integrity as an escrow agent, as long as the loan
was to be funded by a company other than Flagstar.  Alternatively, a mortgage broker who desired
to have Flagstar fund its client’s loan would be required to select an escrow
agent other than Integrity.href="#_ftn3"
name="_ftnref3" title="">[3]  Nothing
in the appellate record even hints that Flagstar was the only lender making the
types of loans involved here.  The
undisputed evidence shows that Flagstar did not instruct or advise other
lenders not to do business with Integrity, and Integrity did not lose any
business as the escrow agent on mortgage loans funded by lenders other than
Flagstar.  Therefore, Flagstar’s
identification of Integrity as an ineligible escrow agent was not independently
wrongful conduct.

Integrity claimed that the independent wrongful
conduct was Flagstar’s alleged defamation and violation of the Real Estate
Settlement Procedures Act of 1974, 12 United States Code section 2601
et seq. (RESPA).

 

A.  >Alleged Defamation

“The elements of a defamation claim are
(1) a publication that is (2) false, (3) defamatory,
(4) unprivileged, and (5) has a natural tendency to injure or causes
special damage.”  (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369; see >Taus v. Loftus (2007) 40
Cal.4th 683, 720; Civ. Code, §§ 44, 45, 45a, 46, 47.)  Integrity failed to offer admissible evidence
creating a triable issue of material fact as to the falsity or lack of
privilege in Flagstar’s publications, whether verbal or on its Web site. 

1.  >Falsity

The publication of Integrity’s name on the
ineligible list rather than on the eligible list was not false, and Integrity
did not dispute that material fact. 
Truth is an absolute defense to a defamation
claim.  (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80
Cal.App.4th 1165, 1180.)  On appeal,
Integrity argues that placing it on the ineligible list was untruthful because
only the California Department of Corporations can make Integrity ineligible to
serve as an escrow agent.  Flagstar’s Web site
only identifies which escrow agents are eligible or ineligible “to handle
Flagstar mortgage loan transactions.” 
Integrity did not offer any evidence that Flagstar’s Web site said
anything other than that Integrity was not eligible to handle Flagstar loans.  Optimum’s president testified that Flagstar’s
list of approved escrow agents meant “you can do business with these escrow
companies if you choose to take a loan to Flagstar Bank.”

Matthew
Dohman, an officer of Optimum, submitted a declaration in opposition to
Flagstar’s motion for summary judgment, reading in relevant part as
follows:  “Tim Kearney is employed by
Flagstar Bank.  He is the Flagstar Bank
Account Executive for Optimum First Mortgage. 
[¶] . . . On January 19, 2011, I received a call
from Tim Kearney at approximately 3:00 p.m. 
During the call, Tim Kearney stated to me that Flagstar Bank had audited
about twenty (20) Optimum loan files.  He
said that Flagstar Bank had Blacklisted^{[href="#_ftn4" name="_ftnref4" title="">[4]]}
both Complete Escrow and Integrity Escrow, and instructed me to switch all of
our current escrows with Complete Escrow and Integrity Escrow to another escrow
company.  He said Complete Escrow and
Integrity Escrow were no longer eligible to act as escrow agents on any
Flagstar Bank loans. 
[¶] . . . [¶] . . . I asked Tim Kearney if
he knew the reason Flagstar Bank was Blacklisting Complete Escrow and Integrity
Escrow.  He said he did not.  He said he was just instructed to inform me
of the action taken by Flagstar Bank and to make it clear that Flagstar Bank
would not allow any loans to close if we used Complete Escrow or Integrity
Escrow.  [¶] . . . I
asked Tim Kearney about the status of Complete Escrow and Integrity Escrow
several times during 2011.  I asked why
they are listed as ‘ineligible’ and if there had been any change.  Each time Tim Kearney advised me he still
does not know any reasons, and they are both still listed on Flagstar Bank[’]s
website as ‘ineligible’ escrow agents.”

2.  >Privilegehref="#_ftn5" name="_ftnref5" title="">[5]  >

Civil Code section 47, subdivision (c)
provides, in relevant part:  “A
privileged publication or broadcast is one made:  [¶] . . . [¶] (c) In a
communication, without malice, to a person interested therein, (1) by one who is
also interested, or (2) by one who stands in such a relation to the person
interested as to afford a reasonable ground for supposing the motive for the
communication to be innocent . . . .” 

To determine the applicability of the common
interest privilege as a defense to defamation, the defendant (in this case, Flagstar)
bears the burden of proof on the issue of the existence of the privilege, and
the plaintiff (here, Integrity) bears the burden of proof on the existence of
malice.  (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1205‑1213.)  Flagstar met its burden of proving it had a
common interest with those who heard or read its allegedly defamatory
statements.  Flagstar had a common
interest with Optimum and the other mortgage brokers that had access to
Flagstar’s Web site listing the escrow agents with which it would do
business; the process of residential mortgage approval and funding will be
expedited and more cost efficient if the mortgage broker working with a
borrower-client is aware of which combination of lender and escrow agent will
be able to complete the process together.

Flagstar was entitled to refuse to do business
with any entity it believed would subject it to a risk of financial or
reputational harm, and well‑settled law supports this conclusion.  (Family
Home and Finance Ctr. v. Federal Home Loan (9th Cir. 2008) 525 F.3d 822,
827 [common interest privilege defeats defamation claim by mortgage broker against
Federal Home Loan Mortgage Corporation (Freddie Mac); Freddie Mac placed mortgage
broker on exclusionary list, which was published “only to its lenders, with
whom it shares a business relationship and common interest in dealing with
investment quality loans”]; Walton v.
Freddie Mac (FHLMC) (S.D.Ind., Mar. 22, 2013, No. 3:12-cv-00116-RLY-WGH)> 2013 U.S.Dist. Lexis 40049, p. *7
[letter from Freddie Mac advising appraisal management company that Freddie Mac
would place it on an exclusionary list was “nothing more than [a] standard
business letter[] issued by Freddie Mac when it has cause to believe that doing
business with a particular business will subject it to an undue risk of harm”];
Prime Time Mortgage, Co. v. Flagstar
Bank, FSB (S.D. Ohio, May 4, 2005, No. 3:03-cv-337) 2005 U.S.Dist.
Lexis 9354, p. *6 [Flagstar published to Mortgage Asset Research Institute
(MARI) that the plaintiff had misrepresented the appraised value of a property;
qualified privilege defeats defamation claim because Flagstar and MARI shared
interest of providing mortgage professionals with whom they both do business
information to prevent fraud].)

In addition, Integrity failed to meet its burden
of establishing the existence of malice. 
In the context of the common interest privilege, malice is not inferred
from the communication; rather, Integrity was required to establish actual
malice by showing that Flagstar’s statements were motivated by hatred of or ill
will towards Integrity.  (>Noel v. River Hills Wilsons, Inc. (2003)
113 Cal.App.4th 1363, 1370.)href="#_ftn6" name="_ftnref6" title="">[6]  Flagstar
offered evidence that Jennifer Kolp, a Flagstar vice‑president, changed
Integrity’s status from eligible to ineligible because of irregularities
discovered during an investigation.  In
the course of that investigation, Flagstar requested to review Integrity’s
files—a request to which Integrity never responded.  Flagstar also offered evidence that the chief
executive officer of Integrity did not have any reason to believe that Flagstar
decided to change Integrity’s status due to hatred or ill will. 

In opposition, Integrity submitted evidence that
Kolp learned of the escrows Integrity had in process when she received a letter
from Integrity’s counsel, after the
decision had been made to place Integrity on the ineligible list; that Kolp
intentionally placed Integrity on the ineligible list; that other Flagstar employees
were unaware of Kolp’s reasons for placing Integrity on the ineligible list;
and that Flagstar had no justification or legal cause to change Integrity’s
status from eligible to ineligible.  None
of the evidence to which Integrity points establishes a triable issue of
material fact that Flagstar acted with actual malice in placing Integrity on
the ineligible list.  (Integrity also
submitted the declaration of its counsel of record, who opined that Kolp had
only “lame excuses” for placing Integrity on the ineligible list.  Counsel’s opinions, rather than admissible
evidence, are insufficient to meet Integrity’s burden on summary
judgment.) 

3.  >Injury

The undisputed evidence showed that Optimum
continued to refer business (other than Flagstar business) to Integrity after
January 2011; Optimum had a good relationship with Integrity; Optimum would
probably continue to refer business to Integrity in the future; Flagstar never
told Optimum that it could not use Integrity to close non-Flagstar loans; and Integrity
did not lose any business other than business from Flagstar.href="#_ftn7" name="_ftnref7" title="">[7]

B.  >Alleged Violation of RESPA

With regard to the alleged RESPA violation,
Integrity’s expert witness on escrow practices declared:  “[I]t is not an industry practice for
institutional mortgage lenders to maintain a ‘blacklist’ or ‘exclusionary list’
applicable to escrow companies.  Many
lenders and other companies have ‘preferred lists[,’] which are companies they
have prior experience doing business with. 
These are established business relationships just like the one between
[Integrity] and Optimum First Mortgage. 
Flagstar Bank does not have the right to exclude any licensed escrow
company in the State of California from any escrow transaction.  In fact, Flagstar Bank does not have the
right to choose or direct who the escrow company will be.  With respect to residential loans, RESPA and
HUD require that the borrower be given the right to choose the escrow
company.  There is a form supplied and
used in almost every residential loan transaction and sale transaction, which
contains the requirements.  [Attached
hereto as Exhibit ‘2’ is a true and correct copy of the standard form.]  By intentionally excluding [Integrity] from
escrow transactions, it is my opinion that Flagstar Bank is engaging in a
violation of RESPA Regulations.  [Title
24, CFR Section 3500, Appendix C.]” 
(Some capitalization omitted.)

Integrity failed to raise a triable issue of
material fact regarding an alleged violation of RESPA.  The settlement service provider list attached
to the declaration of Integrity’s expert witness does not create an obligation on
the part of a lender to permit a borrower to use any escrow agent of the
borrower’s choosing.  The form advises
the borrower of the contact information for various providers of settlement
services being recommended by the loan originator, and advises the borrower
that it is not required to use those service providers.  (The types of providers listed on the form
are title insurance and settlement agent; survey; and pest inspection.)  Integrity did not identify any specific
section of title 12 of the United States Code, or any specific part of title 24
of the Code of Federal Regulations, which creates an inalienable right of the
borrower to select the escrow agent to be used in a mortgage transaction if the
lender with whom the borrower wishes to work refuses to do business with that
escrow agent.  Indeed, Integrity does not
pursue this argument on appeal, other than to quote the expert witness’s
declaration in both its opening and reply briefs.  Without any further explanation or analysis,
Integrity failed to meet its burden in opposition to the summary judgment
motion.href="#_ftn8" name="_ftnref8"
title="">[8]

 

IV.

Unfair Business Practices

The
evidence does not support an unfair business practices claim.  In its second amended complaint and in
briefing in the trial court and on appeal, Integrity referred to several
different statutes as the basis for its unfair business practices claim.  Under Business and Professions Code section
17200, “unfair competition shall mean and include any unlawful, unfair or
fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising and any act prohibited by Chapter 1 (commencing with
Section 17500) of Part 3 of Division 7 of the Business and Professions Code [(which
involves advertising)].”  The purpose of section
17200 is to protect consumers and competitors against the creation or
perpetuation of monopolies and to promote fair competition.  (Cel-Tech
Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20
Cal.4th 163, 179.)  â€œâ€˜Because Business
and Professions Code section 17200 is written in the disjunctive, it
establishes three varieties of unfair competition—acts or practices which are
unlawful, or unfair, or fraudulent.’”  (>Id. at p. 180.)  

The
evidence established that Flagstar did not violate any law.  The evidence also established Flagstar did
not act fraudulently.  As used in Business
and Professions Code section 17200, a fraudulent act is one that would be
likely to deceive members of the public. 
(Daugherty v. American Honda Motor
Co., Inc. (2006) 144 Cal.App.4th 824, 838.)  The evidence established the statements on
Flagstar’s Web site and to Optimum, regarding Integrity’s ineligible
status, were true, and, therefore, even if they were disseminated to the
public, they would not have deceived anyone. 
Finally, the evidence showed that Flagstar’s actions were not unfair,
within the meaning of section 17200. 
Because Flagstar had a legitimate business reason for placing Integrity
on its ineligible list, Integrity’s claim under the unfairness prong of section
17200 failed.  (Family Home and Finance Ctr. v. Federal Home Loan, >supra, 525 F.3d at p. 826.)  Integrity failed to offer admissible evidence
creating a triable issue of material fact as to any prong of the section 17200
test.

Integrity
also raised its unfair business practices claim under Business and Professions
Code section 17046, which makes it “unlawful for any person to use any threat,
intimidation, or boycott, to effectuate any violation of this chapter.”  Flagstar offered evidence that it did not
threaten, intimidate, or boycott anyone; to the contrary, Flagstar offered
evidence that Integrity continued to do business with Optimum as well as other
mortgage brokers.  Integrity did not
create a triable issue of material fact as to any alleged threats,
intimidation, or boycotts.

Finally,
Integrity alleged its unfair business practices claim arose under Business and
Professions Code section 17500, which prevents false advertising.  Flagstar established it had not done any
advertising, and Integrity failed to offer admissible evidence to create a
triable issue of material fact as to any advertising, false or otherwise, by
Flagstar.

 

V.

Defamation>

As
explained ante, Flagstar met its
initial burden to establish one or more of the elements of Integrity’s cause of
action for defamation could not be proven. 
Integrity failed to demonstrate a triable issue of material fact in
opposition to the motion for summary judgment. 
Therefore, the trial court properly determined Flagstar was entitled to summary
judgment on this cause of action as well.

 

VI.

>Declarations
of Guy Puccio and Kolp

Integrity
argues the declarations of Flagstar’s expert witness, Guy Puccio, and Kolp
should have been excluded in their entirety. 
In its written evidentiary objections, Integrity argued the Puccio
declaration should be excluded in its entirety because, in reaching his
opinions, Puccio relied on the first amended complaint and on an earlier
version of the Kolp declaration.  If the
bases for an expert witness’s opinions are faulty, that goes to the weight of
the opinions, not their admissibility. 
The trial court did not abuse its discretion in denying Integrity’s
request to strike the Puccio declaration.

In
the trial court, Integrity did not move to strike Kolp’s declaration in its
entirety.  Integrity fails to provide any
grounds for doing so on appeal.  Rather,
Integrity challenges the correctness of the statements in Kolp’s declaration
and attacks her credibility.  These
challenges do not make Kolp’s declaration inadmissible, however, nor do they
affect the propriety of the order granting summary judgment.  (See Code Civ. Proc., § 437c,
subd. (e) [“summary judgment may not be denied on grounds of
credibility”]; Trujillo v. First American
Registry, Inc. (2007) 157 Cal.App.4th 628, 632.).  We find no grounds for refusing to consider
Kolp’s declaration.

In
opposition to the motion for summary judgment, Integrity’s specific objections
to the Puccio and Kolp declarations were numerous and generally inapplicable.  As but one example, Integrity objected to
Puccio’s declaration that he was the author or editor of certain real‑estate-related
books as lacking sufficient foundation and personal knowledge, and being
speculative, based on hearsay, overbroad, compound, and vague and
ambiguous.  On appeal, Integrity fails to
point to a single item of evidence and explain why the trial court abused its
discretion in overruling Integrity’s objection to that evidence.  Integrity has failed to establish any error
in the trial court’s evidentiary rulings.

Integrity
asks us to strike the unpublished opinions from other jurisdictions cited in
Flagstar’s respondent’s brief, and to strike those cases and authorities cited
in the respondent’s brief that were not cited in Flagstar’s memorandum of
points and authorities in support of the motion for summary judgment.  In addition to violating California Rules of
Court, rule 8.54 (which requires all motions in a reviewing court to be
accompanied by a separate memorandum), Integrity’s requests are without
merit.  While unpublished California
opinions generally may not be cited or relied upon (Cal. Rules of Court, rule
8.1115(a)), this rule does not apply to cases from other jurisdictions.  Further, while a party may generally not
raise new theories or arguments for the first time on appeal, this does not
prevent a party from providing additional authority (especially newly decided
cases) that bolster the arguments previously raised in the trial court.  Integrity fails to show that any of the cases
cited by Flagstar for the first time on appeal addresses wholly new issues that
were not raised in the trial court.

 

Disposition

The
judgment is affirmed.  Respondent to
recover costs on appeal.

 

 

                                                                                   

                                                                                    FYBEL,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P. J.

 

 

 

BEDSWORTH, J.