Mosley v. Ozbirn

Filed 3/16/07 Mosley v. Ozbirn CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from judgments of the Superior Court of Tuolumne County. Rolleen K. McIlwrath, Judge. (Retired judge of the San Joaquin Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)

Carolyn Sue Mosley, in pro. per., for Plaintiff and Appellant.

Kate Powell Segerstrom for Defendants and Respondents Robert L. Ozbirn, Sharon G. Ozbirn, Jay Thomas Wynn and Jacqueline M. Wynn.

Law Offices of Gary P. Dambacher, Gary P. Dambacher; Hinshaw & Culbertson, Robert J. Romero and Bradley M. Zamczyk for Defendant and Respondent Yosemite Title Company, Inc.

-ooOoo-

Plaintiff Carolyn Sue Mosley appeals from the judgments entered after the trial court granted the motions for summary judgment of defendants (1) Yosemite Title Company, Inc. (Yosemite Title), (2) Robert L. Ozbirn and Sharon G. Ozbirn, individually and as trustees of the Ozbirn 1998 Revocable Trust (the Ozbirns), and (3) Jay Thomas Wynn and Jacqueline M. Wynn (the Wynns). Mosley contends triable issues of material fact existed and the defendants were not entitled to judgment as a matter of law. We disagree and affirm the judgments.

FACTUAL AND PROCEDURAL SUMMARY

This matter arrived here after almost 15 years of efforts by Mosley to improve and sell a piece of real property. The other parties have been included in this misadventure for at least eight years. Unfortunately, Mosley has targeted the wrong parties with the wrong theories of liability. Her true remedies, if any, lie with a party not before us at this time.

The dispute involves a 40-acre parcel of property inherited by Carlisle Lane (the property). Lane eventually transferred the property to a trust. Lane and Philip Hudner were named trustees of the trust. Lane became incapacitated because of various illnesses in the late 1990s and died in 2001.^[1]Hudner remains the sole trustee of the trust.

Undoubtedly, Lane and Mosley had some contact about the property in the 1990s. During this time the property was subdivided into five parcels. Mosley provided services in the subdivision process, although the type and extent of services are not certain. The extent of her involvement is not relevant to the issues in this appeal. The subdivision process was completed in 1992.

In 1993 the Wynns agreed to purchase one parcel of the property. The seller of the property in this transaction is somewhat of a mystery. The RESIDENTIAL PURCHASE AGREEMENT AND DEPOSIT RECEIPT (Purchase Agreement) is signed by the Wynns as buyers and signed by Mosley as the broker for both parties. No one signed the Purchase Agreement as the seller.

A first AMENDMENT TO DEPOSIT RECEIPT (First Amendment), apparently prepared by Lane, was executed three days after the Purchase Agreement. This document identifies Mosley as the seller, the Wynns as the buyers, and Hudner and Lane (as trustees) as the owners. It is signed by Mosley and the Wynns, but not by Lane and/or Hudner. We will refer to this transaction as the Mosley/Wynn transaction. We are not deciding whether Mosley was the seller in this transaction.

The only document signed by Lane regarding a potential purchase of the property was a REAL ESTATE TRANSFER DISCLOSURE STATEMENT signed 11 days after the Purchase Agreement. This document refers to the entire 40-acre parcel. It is signed by the Wynns and Mosley as the buyers and Lane as the seller.

An AGREEMENT TO OCCUPY PRIOR TO THE CLOSE OF ESCROW (Agreement to Occupy) was signed by the Wynns and Mosley. The Wynns signed the Agreement to Occupy on the date they signed the Purchase Agreement, while Mosley signed the document 31 days later as the seller.

A CONTRACT SUPPLEMENT ADDENDUM was executed 35 days after the Purchase Agreement. It is signed by Mosley as the seller and the Wynns as the buyers. It is not signed by Lane and/or Hudner.

Mosleys filings in this case indicate that the Wynns acquisition of the property was dependent on their depositing into escrow a sufficient down payment ($20,000). The Wynns apparently intended to acquire the down payment through the proceeds of the sale of another piece of property they owned and by depositing additional funds into escrow until the required amount was reached. The Wynns moved ontothe property shortly after the Purchase Agreement was signed (pursuant to the Agreement to Occupy) and paid rent to Mosley, who in turn paid the money (or rent) to Lane.

An escrow for the Mosley/Wynn transaction was opened at Yosemite Title in 1993. The following documents were deposited into this escrow: (1) the Purchase Agreement; (2) the First Amendment; and (3) the Agreement to Occupy. The Wynns made sporadic deposits into the escrow thereafter.

The documents establish, we think fairly obviously, that Lane and Mosley discussed the possibility of Mosley buying the entire parcel and selling some of the lots to other buyers, including the lot to the Wynns. Mosley was interested in retaining one of the lots for herself. Lanes motivation is not relevant. The record affirmatively demonstrates that the two discussed Mosleys purchase of the property.

What is not clear is whether an agreement ever was reached. Mosley contends the two reached an agreement that was contingent on several factors. Lane, of course, cannot be heard on the issue. What is clear, however, is (1) Mosley never obtained a grant deed to any portion of the property, and (2) neither Mosley nor any other party has ever produced a contract for Mosleys purchase of the property signed by Lane and/or Hudner. Drafts of proposed agreements were produced, but none was signed. We do not read the correspondence as evidencing an agreement between Lane and Mosley to all of the terms of the proposed drafts.

Aside from the payments made into escrow by the Wynns, the escrow remained dormant until August 1999. At that time Yosemite Title received a phone call and a letter from Mosley instructing Yosemite Title to cancel the [Mosley/Wynn] escrow because the Wynns had not deposited the necessary funds into escrow and because the escrow expired 12 months from the date of the contract pursuant to the contract terms.

Approximately three months later, the Wynns instructed Yosemite Title to forward all documents, including their payment history, to Hudner.^[2] Nine months later Yosemite Title received a document entitled SECOND ADMENDMENT TO RESIDENTIAL PURCHASE AGREEMENT AND DEPOSIT RECEIPT (Second Amendment) executed in August 2000 by Hudner and Lane on behalf of the trust and by the Wynns (the trust/Wynn transaction). This is the first document executed on behalf of the trust for the sale of any portion of the property. This document refers to the Purchase Agreement and the First Amendment. It then acknowledges the trusts ownership of the lot and states the Wynns agree to purchase the lot pursuant to the terms of the Purchase Agreement and the Second Amendment. The significant changes to the agreement were (1) the price of the property was reduced by $45,000, and (2) the trust no longer was required to carry a purchase money note from the Wynns. The sale to the Wynns was completed on the above terms on October 25, 2000.

Prior to the close of escrow, Azzaro informed Mosley of the pending sale and requested she provide any contract she had with the trust for the purchase of the property. Mosley could not provide any such document but instead wrote a letter to Yosemite Title on October 20, 2000, claiming she was owed a real estate commission on the sale. Mosley admits she wrote the letter but claims she was not trying to obtain a real estate commission but instead was trying to delay the sale for some unexplained purpose.

In May 2001 the Ozbirns were contacted by a real estate broker (not Mosley), inquiring whether they would be interested in buying the remainder of the property (the lots were adjacent to property already owned by the Ozbirns). In June 2001 the Ozbirns purchased the remaining lots from the trust (the trust/Ozbirn transaction). Mosley filed suit in August 2001, almost one year after the sale to the Wynns was completed.

The original complaint named Lane, Hudner, the Ozbirns, and Yosemite Title as defendants. The second amended complaint, the operative pleading, includes the Wynns as defendants.^[3] It contains eight causes of action and seeks money damages and recovery of the property.^[4]

Mosley seeks recovery of monetary damages from the Ozbirns for fraud related to the purchase of the remainder of the property from Hudner (fifth cause of action), and intentional interference with Mosleys economic relationship with Lane (sixth cause of action).

Mosley seeks monetary damages against the Wynns for breach of contract for the sale of the property (second cause of action), fraud related to the purchase of parcel three of the property directly from the trust (fifth cause of action), and intentional interference with an economic relationship with Lane (sixth cause of action).

Mosley seeks recovery of monetary damages against Yosemite Title for fraud for its participation in the trust/Wynn and the trust/Ozbirn transactions (fifth cause of action), for intentionally interfering with Mosleys economic relationship with Lane (sixth cause of action), and for breach of fiduciary duty related to Yosemite Titles participation in the trust/Wynn and trust/Ozbirn transactions (seventh cause of action).^[5]

This is the third time Mosley has appealed to this court after judgment has been entered against her. The first appeal occurred after the trial court sustained without leave to amend the defendants demurrers to Mosleys second amended complaint. We reversed and remanded for further proceedings after concluding the complaint stated a viable cause of action. (Mosley v. Hudner et al. (Mar. 1, 2004, F041775) [nonpub. opn.] (hereafter F041775).)

Mosleys second appeal occurred after the trial court granted Hudners motion for summary judgment in his individual capacity. Hudner argued he could not be held personally liable to Mosley because he had not committed any act that would expose him to personal liability under the applicable statutes. We affirmed that judgment, dismissing all causes of action against Hudner individually. (Mosley v. Hudner (Apr. 11, 2006, F047436) [nonpub. opn.] (hereafter F047436).) Hudner remained a defendant in the action in his capacity as a trustee of the Lane trust.

This appeal is from the judgment entered in favor of Yosemite Title, the Wynns, and the Ozbirns after the trial court granted their motions for summary judgment.^[6]

DISCUSSION

I. Standard of Review

A successful motion for summary judgment permits a party to obtain a judgment without the necessity of a trial. The purpose of the summary judgment procedure is to provide the courts with a mechanism that looks beyond the pleadings to determine if the parties possess evidence that would require the fact-weighing procedures of a trial to resolve the dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273.)

A trial court must grant a motion for summary judgment when it determines there is no triable issue of material fact, and the undisputed facts entitle the moving party to judgment as a matter of law. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) Its function is to determine if issues of fact exist, not to decide those issues. (Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1076-1077.)

The question of whether an issue is material is answered by referring to the pleadings, the rules of pleading, and the substantive law applicable to the case. (Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 644.) To be material for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way. [Citation.] (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.)

A defendant moving for summary judgment must demonstrate that as a matter of law the plaintiff cannot prevail on any of the pled causes of action. (City of Oceanside v. Superior Court, supra, 81 Cal.App.4th at p. 274.) A defendant does this either by proving the plaintiff cannot establish one or more element of each cause of action or that the defendant has a complete defense to each cause of action. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889; OByrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 804.) The defendants burden is to establish that under no theory does a material issue of fact exist that would require the process of a trial. (Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 612.)

Once a defendant has met his burden, the plaintiff must show an issue of material fact exists. (Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 476.) The plaintiff may not rely upon the mere allegations or denials of its pleadings but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . [Citations.] (Id. at pp. 476-477.) If the plaintiffs evidence does no more than give rise to mere speculation, it is not substantial and does not establish a triable issue of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

We review an order granting a summary judgment de novo. (Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 612; Spears v. Kajima Engineering & Construction, Inc. (2002) 101 Cal.App.4th 466, 473.) We review the ruling, not the trial courts rationale; we will uphold the judgment if it is correct on any grounds, regardless of the trial courts reasoning. (OByrne v. Santa Monica-UCLA Medical Center, supra, 94 Cal.App.4th at pp. 804-805; Reliance Nat. Indemnity Co. v. General Star Indemnity Co. (1999) 72 Cal.App.4th 1063, 1074.)

Our review requires us to assume the role of the trial court and redetermine the merits of the motion. (Cochran v. Cochran (2001) 89 Cal.App.4th 283, 287.) In doing so, we apply the same three-step analysis as the trial court. (Inter Mountain Mortgage, Inc. v. Sulimen (2000) 78 Cal.App.4th 1434.) The first step of the review begins with an analysis of the pleadings, because [t]he pleadings define the issues to be considered on a motion for summary judgment. [Citation.] We next evaluate the moving defendants effort to meet its burden of showing that plaintiffs cause of action has no merit or that there is a complete defense to it. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to its complaint. If the filings in opposition raise triable issues of material fact, the motion must be denied; if they do not, the motion must be granted [citations]. (Miscione v. Barton Development Co. (1997) 52 Cal.App.4th 1320, 1325.)

In performing this analysis, we consider all of the competent evidence presented by the parties (declarations, judicial admissions, responses to discovery, deposition testimony, and items of which judicial notice may be taken) and the uncontradicted inferences supported by the evidence. (Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 476; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843; Sangster v. Paetkau, supra, 68 Cal.App.4th at p. 162.)

II. The Ozbirns Motion for Summary Judgment

Our task is to apply the above three-step analysis to each of the defendants motions for summary judgment. We begin with the Ozbirns motion for summary judgment. Mosley asserted two causes of action against the Ozbirns -- fraud (fifth cause of action) and intentional interference with economic advantage (sixth cause of action).

A. Fraud

1. The pleadings

The fifth cause of action asserts, in essence, that Lane represented to Mosley that he would sell her the property when the sale to the Wynns was ready to be finalized, thus permitting Mosley to sell the Wynns the lot they desired to purchase. Six years later Hudner misrepresented Lanes deteriorating health and concealed the trusts decision not to sell the property to Mosley. The representations and/or concealment were allegedly false and made with the intent to induce Mosley to act. Mosley did not know the representations and/or concealment were false when made and relied on the representations and/or concealment to her detriment. Ozbirn allegedly conspired with Lane and Hudner to ignore Mosleys oral agreement with Lane.

2. The Ozbirns moving papers

The elements of a cause of action for fraud are (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage. [Citation.] (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1108.)

The Ozbirns argued Mosley could not prevail on the fraud cause of action because the Ozbirns did not make any representation to Mosley, and there was no evidence that anything they said was untrue. The motion was supported by Robert Ozbirns declaration that stated he did not have any contact with Lane, Hudner, or the Wynns prior to the purchase of the property by him and his wife (June 2001). Robert Ozbirn also stated that prior to the acquisition of the property, he did not know Mosley claimed to be a party to a contract, or a party to an escrow, for the purchase of the property.^[7] In a separate declaration, he explained he learned the property was for sale when he was contacted by a real estate agent in approximately May 2001, who inquired whether the Ozbirns would be interested in purchasing the property. It is this contact that led to the trust/Ozbirn contract.

3. Mosleys opposition

We quote Mosleys entire argument in her points and authorities to support her allegation that the Ozbirns are liable for fraud: Knowing that Ms. Mosley had an agreement with the Trust, the Ozbirns conspired with and facilitated the fraud by Lane and the Trust by circumventing the Mosley/Lane Contract, ultimately profiting at Ms. Mosleys expense. The Mosley/Lane contract referred to by Mosley is the alleged oral agreement for the purchase of the property.

Mosley responded to each fact contained in the Ozbirns separate statement of undisputed material facts as follows: Disputed. The Ozbirns acted in concert with Yosemite Title, Mr. Lane, and Mr. Hudner in closing the escrow between the Trust and the Ozbirns involving the three remaining parcels and the Residual Parcel without Ms. Mosleys consent. Mosley cited as supporting evidence paragraphs 9, 28, and 29 of her declaration and the Ozbirns verified answer to paragraph 20 of the second amended complaint.

Paragraph 9 of Mosleys declaration referred to the evidence relied on by Mosley to establish a contract existed between Lane and Mosley for the purchase of the property. As explained in our factual summary, ante, these documents establish a written contract for Mosleys acquisition of the property was never executed and do not establish that an oral agreement had been reached between Mosley and Lane. These documents merely establish that Lane and Mosley had discussions about Mosley acquiring the property.

Paragraph 28 of Mosleys declaration states the Ozbirns acquired the property directly from the trust through an escrow handled by Yosemite Title. She goes on to state that Robert Ozbirn was a surveyor (apparently a licensed land surveyor), a neighbor, and that she was the real estate broker for the Ozbirns when they purchased their home. Mosley had arranged for Wanda Dorner to employ Robert Ozbirn in connection with Dorners potential purchase of a portion (two lots) of the property. Dorners interest was apparently dependent on Mosleys acquisition of the property. Finally, Mosley concludes Mr. Ozbirn took advantage of the situation with knowledge of Ms. Mosleys pending purchase of the Property, interfering with her Mosley/Lane contract.

Paragraph 29 of Mosleys declaration simply reiterates that the Ozbirns purchased the property directly from the trust through an escrow at Yosemite Title.

In Paragraph 20 of the Ozbirns verified answer to the second amended complaint, the Ozbirns admitted Mosley acted as their real estate agent in the purchase of their personal residence in 1993. At that time, Mosley told them she was attempting to acquire the land adjacent to their personal residence, which apparently refers to the property, and that if she were successful, she would agree to a lot line adjustment of the Ozbirns property.

4. Disputed issue of material fact and right to judgment

The questions we must answer are did Mosley create a factual dispute that would require a trial and, if not, are the Ozbirns entitled to judgment as a matter of law?

Mosley contends the Ozbirns committed fraud. She does not contend they made an affirmative misrepresentation or concealed any fact. Instead, she relies on misrepresentations attributed to Lane and/or Hudner.

The Ozbirns presented evidence that they did not have any contact with Lane or Hudner before June 2001. The representations attributed to Lane and Hudner occurred during the time period from 1988 through 1998, long before the Ozbirns had any contact with Hudner.

Mosley did not present any evidence or argument that would establish the necessary derivative liability on the part of the Ozbirns. The competent evidence presented by Mosley established only that Robert Ozbirn knew that Mosley was interested in purchasing the property sometime in the 1990s. There is no evidence that there was a conspiracy between the Ozbirns and Hudner.

Therefore, since there was no material fact that was in dispute, and the Ozbirns were entitled to judgment as a matter of law, the trial court was correct.

B. Intentional Interference with Economic Advantage [Relationship]

1. The pleadings

The sixth cause of action alleges that Mosley reached an oral agreement with Lane to purchase the property. During the period November 1993 through October 2000, Mosley discussed her proposed purchase of the property with Robert Ozbirn, including the adjustment of boundary lines of some (or all) of the parcels. Ozbirn provided professional services as a land surveyor to Mosley (or Dorner) regarding the potential adjustment of the boundary lines.

Mosley alleges she had a fiduciary relationship with Ozbirn. Ozbirn also expressed an interest in obtaining a portion of one of the parcels from Mosley. Ozbirn allegedly breached his fiduciary duty to Mosley by contacting Lane or Hudner and purchasing a portion of the property.

2. The Ozbirns moving papers

The Ozbirns based their motion for summary judgment on the belief that Mosley was pleading a cause of action for intentional interference with contract. The elements of a cause of action for interference with a contract are (1) a valid contract between plaintiff and a third party; (2) defendants knowledge of this contract; (3) defendants 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 damage. [Citation.] (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.)

The Ozbirns argued they were not liable for interfering with Mosleys alleged contract with Lane because no such contract existed.

3. Mosleys opposition

We quote in full Mosleys argument to the trial court on this issue: For the reasons stated above, Yosemite, the Wynns, and the Ozbirns intentionally interfered with the Mosley/Lane Contract, all to Ms. Mosleys damage and loss of the Property. The above referred to by Mosley was her argument in opposition to the Ozbirns motion directed at the fraud cause of action, discussed in the preceding section. There are no additional factual citations in either her points and authorities or in her reply to the Ozbirns separate statement of undisputed material facts.

4. Disputed issues of material fact and right to judgment

As explained above, there was no written agreement with which the Ozbirns could interfere. Moreover, the oral agreement Mosley asserts she had with Lane to buy the property could not be performed once the Wynns purchased one of the parcels from the trust. At no time has Mosley alleged she had an agreement to purchase the remaining parcels from the trust. There was, therefore, no contract with which the Ozbirns could interfere.

For the first time Mosley contends in her brief to this court that she pled the tort of intentional interference with prospective economic advantage. The elements for 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 defendants 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.] (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.) It is not enough that the defendants acts resulted in a disruption of the economic relationship; the acts must be independently wrongful. (Id. at pp. 1158-1159.) 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. [Citations.] (Id. at p. 1159, fn. omitted.)

We reject Mosleys reliance on this doctrine for a variety of reasons. First, it is untimely. The Ozbirns moving papers clearly stated that they interpreted Mosleys sixth cause of action as one for intentional interference with contract. Since the second amended complaint is so vaguely pled, Mosley could have argued the cause of action was for intentional interference with prospective economic advantageinstead of interference with contract in the trial court. This would have provided the Ozbirns with the opportunity to litigate the issue fully. Since Mosley failed to present this theory in the trial court, we will not consider it for the first time on appeal. (Sangster v. Paetkau, supra, 68 Cal.App.4th at p. 163.)

Second, as with the interference with contract theory, at the time the Ozbirns purchased the remaining parcels, Mosley did not have any prospective economic advantage with which the Ozbirns could have interfered. The only economic relationship pled by Mosley was that with Lane. Since the oral agreement could not be completed because one of the parcels Mosley was to buy already had been sold, there did not exist any potential economic relationship on which to base this cause of action.

Finally, Mosley has failed to present any facts to show the Ozbirns acted in an independently wrongful manner. In her brief to this court, Mosley relies on the allegations in the second amended complaint, which are insufficient. (Sangster v. Paetkau, supra, 68 Cal.App.4th at p. 163.) Mosleys arguments must be supported by facts, not allegations.

Moreover, none of her allegations provide any basis for the fiduciary relationship Mosley alleged existed with Robert Ozbirn. Her contacts with him, as alleged, establish nothing more than an employer/independent contractor relationship. A fiduciary relationship has been defined as any relation existing between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latters knowledge or consent. [Citation.] [Citation.] (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 141.) There are no facts in the record that would support the claimed fiduciary relationship. There is, therefore, no evidence that Robert Ozbirn acted in an independently wrongful manner. The trial court properly granted summary judgment to the Ozbirns.

III. The Wynns Motion for Summary Judgment

A. Breach of Contract

1. The pleadings

The second cause of action in the second amended complaint alleges that in 1993 the Wynns signed a contract to buy parcel three from Mosley. The Wynns occupied the residence and paid rent to Mosley until such time as the down payment was adequate to close the property. The Wynns allegedly breached the contract in 2000 when they purchased parcel three from the trust.

2. The Wynns moving papers

The Wynns argued that there was never a valid contract between themselves and Mosley because (1) Mosley did not own the property she was attempting to sell; (2) Mosley did not sign the purchase agreement as the seller of the property; and (3) Mosley demanded a commission at the close of that escrow, thus confirming her position as the real estate agent in the transaction. These allegations were supported by the Purchase Agreement (which confirms Mosley did not sign it as the seller of the property), Mosleys letter to Yosemite Title demanding a commission, and the declaration of Azzaro,^[8]which stated Mosley did not have legal title to the property at any time.

3. Mosleys opposition

About the contract action against the Wynns, Mosleys points and authorities argued: Exhibit 4 [the Purchase Agreement, the amendments thereto, and the Agreement to Occupy] represents the Mosley/Wynn Contract for the sale of Parcel 3 of the Property to the Wynns. The Wynns breached this contract by failing to make payments as agreed to the Escrow at Yosemite and by circumventing Ms. Mosley in order [to] close the transaction for a lesser price. Ms. Mosley is entitled to Parcel 3 of the Property, free of claims by the Wynns. [] Triable issues of material fact exist and the motion should be denied.

There is no citation to authority or citation to any facts in support of this argument.

4. Disputed issues of material fact and right to judgment

The elements of a cause of action for breach of contract are (1) the contract; (2) plaintiffs performance or excuse for nonperformance; (3) defendants breach; and (4) damage to plaintiff. (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, 476, p. 570; BAJI 10.85.) The second element of the cause of action requires the plaintiff to be free from substantial default in order to avail herself of the remedies for the defendants alleged breach. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts,  848, p. 935.)

The Wynns based their motion, in part, on Mosleys inability to perform under the contract. Mosley was required to establish either that she performed her obligations under the contract or she offered to perform her obligations under the contract. To meet this requirement Mosley was required to establish that she had the present ability to perform and offered to perform her obligations under the contract, that is, she had title to the property and offered to deposit that title into escrow. Since Mosley never had title to parcel three, Mosley could not perform her obligations under the contract.

We cannot find any relevant argument or authority in Mosleys brief that would explain how Mosley could overcome this deficiency in the cause of action. The trial court properly concluded that Mosley could not recover for breach of contract.

B. Fraud

1. The pleadings

As were the Ozbirns, the Wynns are named as defendants in the fifth cause of action. The allegations are summarized above. The Wynns allegedly conspired with Lane and/or Hudner to obtain parcel three by ignoring the Mosley/Lane contract and buying the parcel directly from the trust.

2. The Wynns moving papers

The Wynns, as did the Ozbirns, asserted that they did not make any false representations to Mosley on which a fraud cause of action could be based. They point out that the only representations pled in the second amended complaint are attributed to Lane and Hudner. The Wynns supported their motion with their declarations, asserting that they did not have any contact with Lane or Hudner prior to the close of escrow on parcel three (October 25, 2000).

3. Mosleys opposition

Mosley argued in her points and authorities that the Wynns misrepresented that they would purchase the Property from Ms. Mosley, and instead, after entering the Mosley/Wynn Contract, evaded that Contract and received a better deal from the Trust. There is no such allegation in the complaint, nor does Mosley present any evidence that at the time the Wynns agreed to purchase the property (allegedly from her), they did not intend to complete the contract. Any such assertion is rebutted, of course, by the deposit of significant sums into the escrow first opened in 1993.

Mosleys response to the Wynns separate statement of undisputed material facts is similar to her response to the Ozbirns facts. Disputed. The Wynns acted in concert with Yosemite Title, Mr. Lane, and Mr. Hudner in closing the Mosley-Wynn escrow (Escrow) as to Parcel 3 of the Property [and selling the other parcels to the Ozbirns] without Ms. Mosleys consent. Mosley relies on her declaration (paragraphs 9, 11, 13, 16-19, 21-27, and exhibit 4) to support her assertion.

Mosleys declaration does not provide any facts to support her assertion of collusion. Paragraphs 9 and 11 merely refer to Mosleys claimed contract with Lane and the escrow at Yosemite Title for the sale to the Wynns. Paragraph 13 relates to the agreement for the Wynns to obtain the necessary funds for the down payment on parcel three. The remaining paragraphs repeat Mosleys assertions about the Wynns lack of payments into escrow, her instruction to close the escrow, documents she received from Yosemite Title, her demand for a commission, her claims about the Wynns purchasing parcel three in the same escrow she opened for her sale to the Wynns, and the subsequent sale of the property to the Wynns and the Ozbirns. Nowhere are there any facts that support her claim that any of the parties conspired to defraud her.

4. Disputed issues of material fact and right to judgment

The first element of the cause of action for fraud is a misrepresentation. Mosley has not alleged any misrepresentation that was made by the Wynns, nor has she provided any facts to support such an assertion. As with the Ozbirns, Mosley has not provided any facts that would establish any cognizable basis for imposing derivative liability on the Wynns. The trial court properly concluded the Wynns were not liable for fraud.

C. Intentional Interference with Economic Relationship

As she did with the Ozbirns, Mosley included the Wynns in the sixth cause of action in the second amended complaint. She made identical arguments as to both parties in the trial court and does the same in this court. Instead of repeating the reasons Mosley cannot recover for this cause of action against the Wynns, we simply refer to part II.B. of the Discussion, ante.

IV. Yosemites Motion for Summary Judgment

A. Fraud

1. The pleadings

Mosleys fifth cause of action for fraud also included Yosemite Title. We repeat, the misrepresentations alleged in the second amendedcomplaint were attributed only to Lane and Hudner. Yosemite Title allegedly conspired with Lane, Hudner, the Wynns, and the Ozbirns to defraud Mosley by acting as the escrow agent in the sale of the property from the trust to the Wynns and the Ozbirns.

2. Yosemite Titles moving papers

Yosemite Title argued it could not be liable for fraud because it did not make any misrepresentations to Mosley. Yosemite Title relied on the allegations in the complaint to support its argument. It also provided various declarations establishing, in essence, that the Wynns contacts with Yosemite Title were limited to their purchase of parcel three, and the Ozbirns contacts with Yosemite Title were limited to their purchase of the remainder of the property. Finally, Yosemite Title produced evidence that it and the trust requested Mosley produce any contract for the purchase of the property signed by the trusts representatives. Mosley has never produced any such document.

3. Mosleys opposition

Mosleys opposition to the various motions for summary judgment did not refer to Yosemite Title at all when discussing the fraud cause of action. As discussed above, Mosley argued the Wynns, the Ozbirns, and the trust were liable for fraud, but she did not make any argument that would indicate Yosemite Title also was liable for fraud.

Mosleys response to Yosemite Titles separate statement of undisputed facts claims many facts are disputed, but she failed to provide any evidence that would establish a dispute. For example, to each fact relating to the trusts ownership of the property, and Mosleys lack of ownership interest in the property, Mosley stated: Disputed. Ms. Mosley provided Yosemite with the Mosley/Wynn Contract and Yosemite received payments from the Wynns on behalf of Ms. Mosley. This assertion, while perhaps true, does not establish that Mosley ever owned any interest in the property. Mosley also responded to many facts with: Disputed. Ms. Mosley entered the Mosley/Lane Contract with Lane/the Trust establishing an equitable interest in title to the Property. Once again, this assertion, even if true, does not establish an interest in the property, but merely a claim that was not adjudicated.

Mosleys only response that touches on a possible conspiracy came in response to Yosemite Titles assertion that the escrow transferring interest in parcel three to the Wynns closed at the direction of the trust and the Wynns. Mosleys response stated: Disputed. Plaintiff has no knowledge of what conspiracies Defendants participated in, but Ms. Mosley had a contract with the Wynns, a pending escrow with Yosemite Title, number 51789, and Ms. Mosley never signed escrow instructions permitting substitution of the Trust for her in the Escrow. Mosley thereby admitted that she had no facts to establish any conspiracy between the various defendants.

4. Disputed issues of material fact and right to judgment

Since Yosemite Title did not make any false representations to Mosley, and Mosley admitted she did not have any facts to suggest Yosemite Title participated in a conspiracy, Yosemite Title was entitled to judgment on the fraud cause of action.

B. Intentional Interference with Economic Relationship

1. The pleadings

Yosemite Title also is named as a defendant in the sixth cause of action, discussed above. Yosemite Title is alleged to have conspired with the Wynns, the Ozbirns, and others to effect an interference with the contract between MOSLEY and the TRUST.

2. Yosemite Titles moving papers

Yosemite Title argued there was not an enforceable contract between Mosley and the trust, and therefore there was no contract with which it could interfere. Yosemite Title argued it could not be liable for interference with a prospective economic advantage because it did not engage in wrongful or illegitimate conduct.

3. Mosleys opposition

Mosleys opposition stated: For the reasons stated [in the argument related to fraud], Yosemite, Lane and the Trust intentionally interfered with the Mosley/Wynn Contract, and Yosemite, the Wynns and the Ozbirns intentionally interfered with the Mosley/Lane Contract, all to Ms. Mosleys damage and loss of the Property. [] Triable issues of material fact exist as to these interferences with the respective economic relationships and the court should deny the motion as to all parties.

4. Disputed issues of material fact and right to judgment

As explained above, Mosley failed to provide any facts to establish (1) a conspiracy, (2) a valid contract, as opposed to an expectancy, existed for the purchase of the property, and (3) any wrongful conduct by Yosemite Title. There is nothing in Mosleys points and authorities or in her reply to Yosemite Titles separate statement of undisputed material facts to support her assertion that Yosemite Title could be liable for this tort. The trial court did not err in granting the motion.

C. Breach of Fiduciary Duty

1. The pleadings

Mosley alleged in her seventh cause of action that Yosemite Title was the escrow agent for the Mosley/Wynn contract. Allegedly, Yosemite Title knew of Mosleys discussions with Lane. Allegedly, Yosemite Title intentionally misled Mosley and failed to inform Mosley that the sale to the Wynns was being completed, thus causing her to be excluded from the sale.

2. Yosemite Titles moving papers

Yosemite Title contends that Mosley was not a party to the escrow, as that term is defined, and thus it did not owe her a fiduciary duty. Even if a fiduciary duty were owed to Mosley at some point in time, Mosley ceased to be a party to the escrow when she sent a letter instructing Yosemite Title to cancel the escrow because the Wynns had failed to make the necessary deposits into escrow. Yosemite Titles separate statement of undisputed material facts referred to the events in the sale of parcel three and the remaining lots.

3. Mosleys opposition

Mosley argued she was a party to the escrow because she was the seller of the property to the Wynns. She claimed the escrow was never cancelled because the same escrow number and Purchase Agreement were used in the Trust/Wynn sale. The funds the Wynns deposited into escrow also were used to close the Trust/Wynn sale.

4. Disputed issues of material fact and right to judgment

The facts are undisputed and consistent with the factual information provided in the summary section of this opinion, ante. The issue is whether Yosemite Title owed a fiduciary duty to Mosley when it participated in the Trust/Wynn sale.

An escrow officer is an agent of each party who submits instructions, documents, and funds into the escrow. (3 Miller & Starr, Cal. Real Estate (3d ed. 2000)  6:25, pp. 57-58.) The escrow officer is obligated to follow the instructions of the principals to the escrow strictly and faithfully. (Id at p. 58.) The escrow officer is a fiduciary to all of the parties to the escrow within the course and scope of this limited employment. (Ibid.) The escrow officers fiduciary duties are generally limited to the faithful performance of the instructions given by the parties. (Id. at p. 59.)

Mosleys arguments have some superficial appeal only because Yosemite Title became a little sloppy in the handling of the transactions. If we accept Mosleys contention that she had a contract with the Wynns for the sale of parcel three, then there were two transactions -- the first, a sale from Mosley to the Wynns, which was never consummated, and the second, the completed sale from the trust to the Wynns. If Yosemite Title had opened a new escrow for the trust/Wynn sale, it would be clear that it owed no fiduciary duty to Mosley related to that sale.

Instead, Yosemite Title, the Wynns, and the trust used the escrow opened by Mosley to sell parcel three to the Wynns. It is understandable why the parties proceeded in this manner. The escrow had been opened for over six years and Mosley had ordered it cancelled. The Purchase Agreement did not identify the seller, although the amendments identified Mosley as the seller. The trust had title to the property until it transferred parcel three to the Wynns, meaning Mosley never had title to the parcel she was attempting to sell to the Wynns. Finally, Mosley did not have an executed contract to support her claim that she was to buy the property.

So, the question is whether Yosemite owed a fiduciary duty to Mosley simply because Mosley first opened the escrow and some of the paperwork she initiated was used in the transaction. The answer is no. Yosemite Title owed a fiduciary duty to the parties to the transaction. The parties to the trust/Wynn transaction were the trust and the Wynns.

Mosley was a party to the Mosley/Wynn transaction. And, in theory, Yosemite Title owed her a fiduciary duty in that transaction. Mosley, however, has not identified any breach of the fiduciary duty Yosemite Title owed to her. There is no evidence in the record that Mosley gave any instruction to Yosemite Title other than to cancel the escrow.

No matter how it is phrased, Mosleys main complaint is that Yosemite Title did not prevent the trust from selling parcel three directly to the Wynns. But Yosemite Title did not have any such obligation or authority. If Mosley wanted that transaction stopped, it was her obligation to do so by filing suit and recording a notice of pending action before the sale was recorded. Yosemite Title complied with any obligation it may have had to Mosley by informing her that the trust/Wynn transaction was about to close and asking her for any documents to verify her claim of a contract for the purchase of the property.

Mosleys theories are without substance. That some paperwork she had originated was utilized in the trust/Wynn transaction does not implicate any fiduciary duty owed by Yosemite Title to Mosley. The paperwork, after all, was signed by the Wynns. If the Wynns chose to use it in a subsequent transaction, Yosemite Title had no right to refuse. Moreover, even if a technical breach of fiduciary duty occurred, a conclusion we do not reach, Mosley was not damaged. Refusal to permit the trust and the Wynns to use the Purchase Agreement would have resulted in simply drafting a new purchase agreement. It would not have stopped the trust/Wynn transaction.

We reach the same result with regards to the money deposited into escrow by the Wynns. Mosley has never argued she had any right to these funds. Perhaps that is so because she realized that if the conditions of the escrow did not occur, at the expiration of the time provided the escrow agent would be required to return the money deposited into the escrow to the buyer. (3 Miller & Starr, Cal. Real Estate (3d ed. 2000)  6:27, p. 75.) As Mosley pointed out in her cancellation letter, the time provided in the Purchase Agreement expired in 1994.

Moreover, even though the Purchase Agreement contained a liquidated damages clause benefiting the seller, the Purchase Agreement was not signed by a seller, and the liquidated damages clause was not initialed by the seller.^[9] Even if we were to assume the liquidated damages clause was enforceable by Mosley, a conclusion we do not reach, recovery would have been impossible because Mosley could not perform her obligations under the contract for one simple reason -- Mosley never acquired title to the property.

Mosley had no right to these funds under any theory. Therefore, even if Yosemite Title owed some fiduciary duty to Mosley, she was not damaged. The trial court correctly determined Yosemite Title was entitled to summary judgment.

V. Mosleys Additional Contentions

Mosley has provided a long, unfocused brief. It is, to say the least, difficult to comprehend. It contains numerous claims and arguments that have no factual or legal support. Nonetheless, we will address some of the claims made in a summary fashion for the sake of thoroughness.

A. This Courts Decision in Case No. F041775

Mosley places reliance on this courts unpublished opinion in her first appeal, case No. F041775. This is so, perhaps, because she received a positive result from this appeal. Indeed, she suggests in her brief that our unpublished opinion in case No. F047436 was wrong and that we should revisit the issues presented in that appeal.

Neither of the above opinions have any relevance to this appeal. The appeal in case No. F041775 was from a judgment entered after the defendants demurrers were sustained without leave to amend. The standard of review in such a case requires us to assume the truth of properly pled facts. In this case, we are reviewing a judgment entered after a motion for summary judgment was granted. The standard of review requires us to review the actual facts established by competent evidence, not mere allegations. The differing standards of review render the opinion in case No. F041775 irrelevant to the issues in this appeal.

B. Sharon G. Ozbirns Late Declaration

The Ozbirns motion for summary judgment was accompanied by the declaration of Robert Ozbirn. Sharon Ozbirn did not submit a declaration. It appears Sharon Ozbirn did execute a declaration but, because of confusion in her attorneys office, it was not filed with the trial court until reply papers were filed on behalf of the Ozbirns. The trial court was asked to accept and consider the late-filed declaration because it was inadvertently omitted from the original filings, it was identical to Robert Ozbirns declaration, and no new issues were raised.

Mosley did not object to the late-filed declaration in the trial court. It is now too late to raise the issue and we deem it waived.

C. The Wynns Occupancy of the Property

Mosley devotes one section of her brief to the Wynns occupancy of the property. Her purpose is to convince this court that she occupied the property because she permitted the Wynns to live in the house located on the property and collected rent from them. The issue of whether Mosley occupied the property may be relevant to the question of whether she had an enforceable oral agreement with the trust to purchase the property, but is irrelevant to any issue involving the judgment before us.

D. Summary Judgment Versus Summary Adjudication

Mosley cites the difference between summary judgment and summary adjudication and points out that summary judgment must be denied in its entirety if a material factual issue exists with even one cause of action. Since Mosley cannot establish that a triable issue of material fact exists as to any cause of action, this distinction is irrelevant.

E. Discovery

Mosley contends that she was afforded an inadequate opportunity to conduct discovery in this matter and summary judgment should have been denied for that reason. Code of Civil Procedure section 437c, subdivision (h) provides that a party may seek a continuance of a motion for summary judgment under certain conditions, including the inability to obtain necessary discovery. Mosley did not seek a continuance of the hearing to conduct additional discovery in the trial court and cannot complain now she did not have adequate opportunity to do so. (Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 190.)

F. Oral Argument

Mosley complains her counsel was not afforded adequate opportunity at oral argument to present her case, and complains that defendants misrepresented some of the facts in their presentation to the trial court. There was no error. The trial court gave an equal amount of time to each counsel to address the trial court and an adequate opportunity to address inaccuracies in the opposing parties arguments. No counsel asked the trial court for additional time to argue. Together with the extensive briefing by each party in the trial court, all parties had ample opportunity to present their contentions to the trial court.

DISPOSITION

The judgments are affirmed. Costs are awarded to Yosemite Title, the Wynns, and the Ozbirns.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

VARTABEDIAN, Acting P.J.

_____________________

GOMES, J.

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^[1] There is no competent evidence in the record to establish that Lane has died. Lane, however, was never served with the complaint, nor was his estate, and he is not a party to this action. While we are confident that Lane has passed away, we note that his status is irrelevant to the issues in this appeal.

^[2] In a declaration by Michael Azzaro, Yosemite Titles chief title officer, Azzaro indicated that the documents were forwarded to Hudners attorney, a distinction that is not important.

^[3] This was notthe third