Tardif v. Zatikyan CA2/4 ( 2013 )

Filed 7/30/13 Tardif v. Zatikyan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
BARBARA TARDIF, B240701
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SC105696)
v.
ARMAN ZATIKYAN et al., ORDER MODIFYING OPINION
AND DENYING REQUESTS FOR
Defendants and Respondents. PUBLICATION
(NO CHANGE IN JUDGMENT)
THE COURT*
We have received and reviewed appellant’s request for modification, appellant’s
request for partial publication, and a request for partial publication filed by the California
Association of Realtors.
The requests for publication are denied. It is ordered that the unpublished opinion
filed July 3, 2013 be modified as follows:
1. On the title page, the name of counsel for plaintiff and appellant is changed to
“Law Office of Gerard L. Friend and Gerard L. Friend for Plaintiff and Appellant.”
2. The name “Island Shores” is replaced by the name “Island Shore” on page 6,
the last line; on page 8, the first full paragraph, last sentence; on page 10, the first line; on
page 12, the second full paragraph, the next to last line; and on page 15, the second full
paragraph, line 14.
3. On page 13, the last line on the page, “CS0:2.5%” is replaced by “CSO:2.5%”.
4. On page 15, the second full paragraph, in the sentence on line 5 beginning
“Tardif alleged that Bolin told the Willises not to contact her; . . .” the word “her” is
stricken and the name “Tardif” is substituted so the sentence begins: “Tardif alleged that
Bolin told the Willises not to contact Tardif, . . .”
This modification does not change the judgment.
______________________________________________________
*EPSTEIN, P.J. WILLHITE, J. MANELLA, J.
Filed 7/3/13 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
BARBARA TARDIF, B240701
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SC105696)
v.
ARMAN ZATIKYAN et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
John H. Reid, Judge. Reversed in part, affirmed in part.
Law Office of Gerald L. Friend and Gerald L. Friend for Plaintiff and Appellant.
Law Offices of Ginzburg & Bronshteyn and Yasha Bronshteyn for Defendants and
Respondents Arman Zatikyan and Lilit Grigoryan.
Law Offices of Jerry K. Staub and Jerry K. Staub for Defendant and Respondent
Arline Bolin.
Barbara Tardif appeals from a judgment of dismissal entered in her action for a
real estate broker’s commission after the trial court sustained demurrers to several causes
of action alleged in her second, third, and fourth amended complaints. We conclude that
she alleged a cause of action for breach of contract against the sellers on a third party
beneficiary theory based on the listing agreement entered into by the sellers. Tardif
failed to allege a right to recover a commission from the sellers’ agent based on the
listing of the property with the Multiple Listing Service itself. She adequately alleged a
cause of action for intentional interference with prospective economic advantage against
the sellers and their broker which is not barred by the statute of limitations or abandoned.
FACTUAL AND PROCEDURAL SUMMARY
We take our factual summary from the allegations of the second, third and fourth
amended complaints which are at issue in this appeal. In August 2007, Arman Zatikyan
and Lilit Grigoryan purchased a residence on Cherokee Lane in Beverly Hills (the
Cherokee property) for $9,250,000. In January 2008, they purchased a different property
for $18,000,000, necessitating the sale of the Cherokee property. Tardif alleged that
Zatikyan and Grigoryan entered into an exclusive listing agreement (Listing Agreement)
with defendant Arline Bolin (listing agent) to sell the property. Zatikyan and Grigoryan
dispute this, pointing out that the space on the Listing Agreement for seller is filled in
with “9311 Cherokee Lane”, the address for the property, rather than with their names.
We discuss that dispute below, but as we shall explain, it is appropriate to identify
Zatikyan and Grigoryan in this opinion as “sellers.” The listing period was January 8,
2008 to May 8, 2008.
The Listing Agreement provided that sellers would pay a 1 percent commission to
the listing agent and a 2½ percent commission to a “seller broker” who participated in the
Multiple Listing Service (MLS), and procured a buyer offering to purchase the property
4
on terms acceptable to the sellers during the listing period (cooperating broker).1 On
January 8, 2008, the Cherokee property was listed on the MLS with an asking price of
$9,495,000.2
Tardif is licensed as a California real estate agent and is a participating member of
the MLS.3 Among her clients were Brian and Snizhana Willis (buyers) who were in the
market to purchase property in Beverly Hills. On April 29, 2008, Tardif showed buyers
the Cherokee property. They instructed her to prepare and present an offer to sellers to
purchase the property for $8,600,000. A provision for payment of a commission to a
“cooperating broker” was included in the offer. Tardif alleged this offer was rejected by
sellers, who counteroffered to sell for $9,220,000 under the same terms as the buyers’
original offer, including the obligation that sellers pay her a 2½ percent commission as
cooperating broker.
The second amended complaint alleged that buyers authorized Tardif to prepare a
counter to the counteroffer to purchase the property for $8,900,000. But after she
forwarded that offer to buyers, they advised her that they were no longer interested in
purchasing the Cherokee property and instructed Tardif to withdraw all offers. The
sellers never received this counter to the counteroffer. Tardif withdrew all offers on the
property in writing on May 6, 2008. These allegations are omitted from the third and
fourth amended complaints.
1The Listing Agreement authorized Bolin to offer MLS brokers 2½ percent of the
purchase price.
2 Although the third amended complaint alleges the Cherokee property was listed
for $9,495,000, the listing with the MLS, an exhibit to the complaint, states the listing
price as “$9,625,000”.
3 At the relevant times, Tardif was employed by Nourmand & Associates, LLC, a
licensed California brokerage firm which assigned its right to assert a broker’s fee to
appellant prior to the filing of this litigation.
5
Tardif alleged that the same day, May 6, 2008, buyers, utilizing the name “Island
Shore Services, LLC”, a business entity they owned and which was alleged to be their
alter ego, entered into a sales contract with sellers to purchase the Cherokee property for
$9,000,000. No buyer’s agent was involved in the transaction. Escrow closed on this
sale on June 18, 2008.
Tardif sued Zatikyan, Grigoryan, Bolin (collectively “defendants”), and Bolin’s
agency, Remax Marquee Partners, in November 2009. Sellers answered, and there was a
voluntary dismissal of Remax. Tardif was granted leave to amend and filed a first
amended complaint in September 2010 which alleged causes of action for 1) breach of
contract, 2) breach of contract/third party beneficiary/conspiracy to breach contract;
3) fraud and conspiracy to commit fraud, intentional misrepresentation, and
4) interference with prospective economic advantage. The court sustained a demurrer to
all causes of action with leave to amend. The second amended complaint was filed in
February 2011. Defendants’ demurrers were sustained without leave to amend as to the
second cause of action for breach of contract/third party beneficiary and with leave to
amend as to the remaining causes of action.
Tardif’s third amended complaint alleged causes of action for breach of contract,
fraud, and breach of the covenant of good faith and fair dealing. The demurrers were
sustained without leave to amend, but Tardif was given leave to file a fourth amended
complaint alleging interference with prospective economic advantage. The fourth
amended complaint alleged only that tort cause of action. Defendants demurred once
again. Their demurrers were sustained without leave to amend and the entire action was
dismissed. Orders and judgments of dismissal in favor of Zatikyan, Grigoryan, and Bolin
were entered. Defendants gave notice of entry of judgment. This timely appeal
followed.
6
DISCUSSION
I
On appeal from a dismissal after an order sustaining a demurrer, we “‘“examine
the complaint de novo to determine whether it alleges facts sufficient to state a cause of
action under any legal theory, such facts being assumed true for this purpose.”’
[Citations.]” (Village Northridge Homeowners Assn. v. State Farm Fire & Casualty Co.
(2010) 50 Cal.4th 913, 921.) “[W]e treat the demurrer as admitting all material facts
properly pleaded. ‘“Further, we give the complaint a reasonable interpretation, reading it
as a whole and its parts in their context.”’ [Citations.]” (C.A. v. William S. Hart Union
High School Dist. (2012) 53 Cal.4th 861, 866.)
II
Tardif argues the trial court erred by sustaining demurrers to her cause of action
for breach of contract/third party beneficiary in her second amended complaint. In that
cause of action, she alleged that she was an intended third party beneficiary of the Listing
Agreement entered into between sellers and Bolin, their listing agent, which is attached to
the complaint. Her contract claims against the sellers are based on the Listing
Agreement. She also alleged that between May 2008 and August 2009 and thereafter,
defendants knew that she had represented the Willises in connection with the Cherokee
property. Allegedly, defendants agreed to leave the Cherokee property on the market as
an “active” listing until the close of escrow on June 18, 2008, after the listing expired on
May 8, 2008. Tardif alleged: “Defendants proceeded to sell the Cherokee Lane Property
to ISLAND SHORE SERVICES, LLC, whose owners, managing members and alter egos
were and continue to be none other than Plaintiff’s clients, BRIAN WILLIS and
SNIZHANA WILLIS.” The cause of action alleged that the ultimate sale of the property
was designed to avoid paying Tardif the 2½ percent commission on the sale.
7
The “Listing Period” under the Listing Agreement was from January 8, 2008 to
May 8, 2008. Paragraph 4 of the Listing Agreement describes the compensation to be
paid to “broker,” identified as Bolin. Tardif claims a right to a 2½ percent commission
under three subparts of paragraph 4.
A. Compensation Provisions of Paragraph 4
Subparagraph 4.A. of the Listing Agreement provided form options which were to
be checked and filled out for commissions based on either a percentage of the purchase
price or a flat dollar amount, all of which were left blank. Tardif relies on the third
provision of this subparagraph which reads: “Seller agrees to pay to Broker as
compensation for services irrespective of agency relationship(s) . . . 1% to listing 2.5% to
seller broker as follows: [¶] (1) If Broker, Seller, cooperating broker, or any other
person procures a buyer(s) who offers to purchase the Property on the above price and
terms, or on any price and terms acceptable to seller during the listing period, or any
extension.”
Paragraph 4.D. of the Listing Agreement addresses the subject of cooperating
brokers. It states that sellers had been advised that Bolin had a policy of cooperating with
other brokers and sets forth “the amount of compensation offered to, other brokers.”
Subparagraph 4.D. (1) states: “Broker is authorized to cooperate with and compensate
brokers participating through the multiple listing service(s) (‘MLS’): (i) by offering MLS
brokers: either [here a box is checked] 2½ [filled in a blank] percent of the purchase
price . . . .”
B. Analysis
Tardif argues that she adequately alleged a cause of action for breach of contract
as a third party beneficiary of the Listing Agreement, relying on allegations that she
procured the buyers within the listing period. She contends that an agreement to sell the
property was consummated between the buyers and seller “or their alter egos” during the
listing period. She apparently argues that the signing of the agreement for sale of the
property to Island Shores is a sufficient allegation that the buyer’s price and terms were
8
acceptable to the owners as required under paragraph 4 of the Listing Agreement. Based
on this reasoning, she contends she was entitled to a 2½ percent commission under the
Listing Agreement. Tardif argues: “However, the sale occurred outside the auspices of
the Listing Agreement . . . and did not involve the payment of commission to the
cooperating seller broker [Tardif] . . . as required under the contract . . . thereby giving
rise to a cause of action for a third-party breach of contract.”
As a separate basis for her cause of action for breach of contract, Tardif relies on
paragraph 4.A.(2) of the Listing Agreement. As alleged, that paragraph provides for
payment of a commission after cancellation of the Listing Agreement if the owners
entered into a contract of sale with buyers who were physically shown the property
during the listing period or had submitted a signed written offer to acquire the property.4
Tardif notes that she did not allege that the Listing Agreement had been cancelled, and
that cancellation would be a question of fact beyond the scope of a demurrer. But she
alleged that she showed the property to Brian and Snizhana Willis, submitted a signed
offer for them, and that the property was sold to their “related entity,” Island Shore
Services, which she describes as the buyers’ “wholly-held LLC and alter ego.” The
complaint alleged that the ultimate buyer, Island Shore Services, LLC is “a corporation
owned and/or controlled by ‘BUYERS’ and which was the alter ego of ‘BUYERS’ . . . .”
4 Subparagraph 4.A.(2) provides an alternative commission provision to address
sales made to a buyer identified during the listing period, but who does not buy until after
the end of the listing: “If Seller, within ____ calendar days (a) after the end of the Listing
Period or any extension, or (b) after any cancellation of this Agreement, unless otherwise
agreed, enters into a contract to sell, convey, lease or otherwise transfer the Property to
anyone (‘Prospective Buyer’) or that person’s related entity; (i) who physically entered
and was shown the Property during the Listing Period or any extension by Broker or a
cooperating broker; or (ii) for whom Broker or any cooperating broker submitted to
Seller a signed, written offer to acquire, . . . the Property. Seller, however, shall have no
obligation to Broker under paragraph 4.A.(2) unless, not later than 3 calendar days after
the end of the Listing Period or any extension or cancellation, Broker has given Seller a
written notice of the names of such Prospective Buyers.” (Italics added.)
9
The third basis for the breach of contract cause of action under the Listing
Agreement is the third subparagraph of paragraph 4.A. which provides for payment of
2½ percent to the seller broker if the property was withdrawn from sale, conveyed, or
transferred by seller during the listing period or any extension without “Broker’s prior
written consent”. The Listing Agreement identifies Bolin, not Tardif, as the “Broker.”
Tardif argues that this provision applies because buyers withdrew their counteroffer, and
then purchased the property the same day by using the Island Shores entity.
Tardif argues the trial court erred in relying on Colbaugh v. Hartline (1994)
29 Cal.App.4th 1516 (Colbaugh) in sustaining the demurrers to the cause of action for
breach of contract on a third party beneficiary theory. She contends that Colbaugh is
distinguishable. In that case, a ranch was listed for sale with a broker using a standard
form “Exclusive Authorization to Sell” which authorized the broker to cooperate with
subagents and provided for a 6 percent commission to the listing broker. At sale, the 6
percent commission was paid by sellers, 3 percent to the listing broker, and 3 percent to
Regal Realty and one of its agents. Before the escrow closed, plaintiffs (Roger
Colbaugh, a broker, and Rodney Niebuhr, a salesman who was associated with him)
demanded the 3 percent cooperating broker’s commission on the ground that they, rather
than Regal Realty, were the procuring cause of the sale. Plaintiffs sued for the
commission and settled with the buyers of the property and the real estate agents who
received the cooperating broker’s commission. They went to trial against the sellers, but
the trial court granted nonsuit in favor of the sellers.
The Court of Appeal found no evidence of a written cooperation agreement
between the listing broker and the cooperating brokers. (Colbaugh, supra, 29
Cal.App.4th at pp. 1523–1524.) It also held that any action was barred for failure to
comply with the statute of frauds for real estate commissions. (Civ. Code, § 1624, subd.
(5).) It noted that there was no provision in the Listing Agreement authorizing the listing
agent to divide any commission with subagents. In addition, since the sellers had
complied with the only commission term by paying 6 percent to the listing agent, there
10
was no evidence of a breach of the Listing Agreement. (Id. at pp. 1524–1525.) Tardif
argues that Colbaugh is distinguishable because here the Listing Agreement expressly
provided for payment of a 2½ percent commission to the cooperating broker. Tardif
alleged that sellers were fully aware of this provision in that they signed the Listing
Agreement.
We agree with Tardif that Colbaugh, supra, 29 Cal.App.4th 1516 is
distinguishable on this basis. Here, unlike Colbaugh, there was a written agreement,
signed by one of the sellers, to split the commission between the listing broker and the
cooperating broker. In Colbaugh there was no written agreement between the listing
broker and cooperating broker, nor was there evidence that the listing broker agreed to
employ plaintiff as a subagent or to pay him a commission if he procured the sale of the
property. The plaintiffs were among a number of brokers who were given materials
soliciting a bid on the property. (Id. at p. 1523.)
Colbaugh also is distinguishable because Tardif was a participant in the MLS,
while the plaintiffs in Colbaugh were not. (Colbaugh, supra, 29 Cal.App.4th at p. 1523,
fn. 1.) In a footnote, the Colbaugh court acknowledged the impact of a listing with the
Multiple Listing Service: “As noted above, the brokers did not make contact through the
local Multiple Listing Service. ‘When the listing is filed with the Multiple Listing
Service there is an express offer to pay compensation to a member of the Service who
procures a buyer; the amount of the compensation is stated as a specific sum or a
percentage of the sales price of the property.’ (1 Miller & Starr, [Cal. Real Estate (2d ed.
1989)] § 2:30, p. 621.)” (Id. at p. 1523, fn. 3.) The court concluded that the availability
of a cause of action by a cooperating broker against the seller depends on “‘whether the
owner was aware of, or expressly authorized, the cooperation agreement between the
listing broker and the cooperating broker, whether the seller accepted the buyer’s offer by
executing a contract of sale, and whether the sale to the buyer was consummated.’
(1 Miller & Starr, op. cit. supra, § 2:30, pp. 623–624.)” (Id. at pp. 1523–1524.) Tardif
alleged that sellers accepted the buyers’ offer and that the sale was consummated, albeit
11
through the use of the Island Shores entity which she alleged was the alter ego of the
buyers.
Where a contract is expressly made for the benefit of a person who is not a party
to a contract, that third party may sue to enforce his or her rights. (Mercury Casualty Co.
v. Maloney (2003) 113 Cal.App.4th 799, 802, citing Civ. Code, § 1559.) A putative third
party beneficiary must demonstrate that the claimed benefit is one the contracting parties
intended to confer. (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1028; see also
Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022.)
“The rights of a third party beneficiary thus depend upon the intent of the contracting
parties. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524 (Hess).) ‘Ascertaining this
intent is a question of ordinary contract interpretation.’ (Ibid.) It follows that if the
requisite intent appears unambiguously from the face of the contract, the third party
makes a prima facie showing of entitlement merely by proving the contract.” (Rodriguez
v. Oto, supra, 212 Cal.App.4th at p. 1028 [“In a case of this kind, the contract either
grants an intentional benefit to the person asserting rights under it, or it affords him no
benefit at all.”].)
The decision in Steve Schmidt & Co. v. Berry (1986) 183 Cal.App.3d 1299(Schmidt) is instructive. In that case, a property sale fell through when the buyer refused
to agree with terms of a counteroffer by the seller. The Listing Agreement provided that
the seller authorized his agent to cooperate with other brokers and to divide any
commission due under the agreement with them. (Id. at p. 1311.) Unlike our case, the
intent to allow division of the commission was further memorialized in a written letter
agreement between the listing broker and the cooperating broker. That agreement
provided that the 6 percent commission would be divided between the brokers if the
cooperating broker procured a ready, willing, and able buyer. (Ibid.) Although Schmidt
involved review of a summary judgment, no extrinsic evidence was presented on the
issue of the division of the commission so it was treated as a question of law based on
interpretation of the agreement. (Schmidt, supra, 183 Cal.App.3d at p. 1313.) The court
12
found that the seller was bound by the listing broker’s promise to share the commission
with the cooperating broker and that the seller had made an implied promise to the
cooperating broker to pay him. (Id. at p. 1312.) The court also found that the
cooperating broker had enforceable rights against the seller “as a member of a class
which was intended to be directly benefited” by the seller’s promise to divide the
commission between the listing and cooperating brokers. (Id. at p. 1313.)
Sellers argue that Tardif cannot assert third party beneficiary status because the
Listing Agreement does not identify specific parties or the class of the parties intended to
benefit by the agreement. We disagree. The Schmidt court reasoned: “It is not necessary
that the contract identify the third party by name as long as such third party can show that
he is one of a class of persons for whose benefit it was made. [Citations.]” (Schmidt,
supra, 183 Cal.App.3d at p. 1313.) It concluded that section 10(c) of the Listing
Agreement expressed this intent: “(c) Owner hereby authorizes Agent to cooperate with
other brokers, salesmen and subagents, and to divide with them any commission or other
compensation due under this Agreement.” (Id. at p. 1304.)
The language of the Listing Agreement here is similar to the language relied upon
by the Schmidt court. Paragraph 4.D. states: “Seller has been advised of Broker’s
[Bolin] policy regarding cooperation with, and the amount of compensation offered to,
other brokers. [¶] (1) Broker is authorized to cooperate with and compensate brokers
participating through the multiple listing service(s) (‘MLS’): (i) by offering MLS
brokers: either [here a box is checked] 2½ percent of the purchase price . . . as per
Broker’s policy.” As did the plaintiff in Schmidt, supra, 183 Cal.App.3d 1299, Tardif
adequately alleged she was a third party beneficiary of the Listing Agreement and that
this agreement to pay her commission was breached when the property was sold to an
entity that is the alter ego of the buyers she procured. Under the language of the Listing
Agreement, sellers promised to pay the cooperating broker’s commission. In light of this
conclusion, we need not address sellers’ arguments premised on the lack of an express
written agreement to pay a commission to a cooperating broker, such as Tardif.
13
Sellers attempt to distinguish Schmidt by arguing that no contract was created for
the sale of the Cherokee property because of the counteroffer and the buyers’ withdrawal
of their offer. But as we have discussed, Tardif had third party beneficiary rights arising
from the Listing Agreement itself.
Sellers next argue that Tardif cannot claim a right to a commission as third party
beneficiary because the sale was never consummated, a condition precedent to the right
to a commission. Paragraph 4.A.(1) of the Listing Agreement provides that a
commission was to be paid (1 percent to listing broker, 2½ percent to seller broker) if a
cooperating broker procures a buyer(s) “who offers to purchase the Property on the above
price and terms, or on any price and terms acceptable to Seller during the Listing Period
. . . .” (Italics added.) The documents attached to the second amended complaint
establish there was no offer for the listing purchase price of $9,625,000. But, Tardif
alleged that before the Listing Agreement expired on May 8, 2008, the Cherokee property
was sold to an alter ego of buyers. “Whether a party is liable under an alter ego theory is
a question of fact. [Citation.]” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 418.)
Under the principles governing review of a ruling sustaining a demurrer, we must treat
the demurrer as admitting all material facts properly pleaded. (C.A. v. William S. Hart
Union High School Dist., supra, 53 Cal.4th at p. 866.) Therefore, at the pleading stage,
we must accept as true the allegation that Island Shores, which purchased the Cherokee
property from sellers was the alter ego of the Willises who were procured by Tardif.
Sellers argue that Tardif cannot bring a breach of contract cause of action against
them as third party beneficiaries of the Listing Agreement because they are not identified
as sellers on that document. As we have noted, the line for seller is filled in with the
address of the property rather than with the names of the owner. The second amended
complaint does not contain an allegation addressing this issue. In her reply brief, Tardif
argues that sellers raise a factual issue regarding the identity of the seller, which must be
resolved in favor of the allegations of the complaint on demurrer. In their brief, sellers
assert that “ZATIKYAN presented a written counteroffer to the WILLISES in the amount
14
of $9,220,000.00 which was not accepted.” This statement is supported by a reference to
the largely illegible counteroffer which was made an exhibit to the second amended
complaint and the succeeding versions. This is an admission that at least Zatikyan was in
fact the seller of the Cherokee property. In addition, both the purchase offer prepared by
Tardif on behalf of the buyers dated April 29, 2008 and the counteroffer prepared by
Tardif for buyers identify Zatikyan and Grigoryan as sellers. Both documents are
exhibits to the second amended complaint. Any ambiguity regarding the identity of the
seller on the Listing Agreement may be resolved by amendment of the cause of action for
breach of contract on the third party beneficiary theory and by attaching a legible copy of
the counteroffer dated April 30, 2008.
Sellers also argue that Tardif was required to allege that a commission was paid to
the listing broker which was to be shared with Tardif. But the fact that no commission
was paid to the listing broker does not exclude a claim by Tardif for her commission
under the express terms of the Listing Agreement we have discussed.
We conclude that Tardif adequately alleged a cause of action for breach of
contract based on the Listing Agreement against the sellers and reverse the trial court’s
ruling sustaining demurrers to that cause of action without leave to amend.
III
At oral argument, counsel for Tardif clarified her theory against Bolin. He
explained that it is based on breach of the listing of the property with the Multiple Listing
Service, a document attached as an exhibit to the third amended complaint. He explained
that Tardif is not claiming a right to collect her commission from Bolin under the terms
of the Listing Agreement. Based on that representation, we do not discuss the arguments
of the parties regarding any possible liability of Bolin to Tardif under the Listing
Agreement or any document in this matter other than the listing itself.
Bolin’s argument under the listing is based on the following provision at the
bottom of the form: “CS0: 2.5%”. He contends that under the rules and regulations of
15
the Multiple Listing Service, this notation means that cooperating brokers are promised a
2.5 percent commission for procuring ready and willing buyers. This language, he
contends, constituted a unilateral offer to Tardif on which she relied.
Tardif’s reliance on the listing document itself fails because it does not identify
Bolin as the party who promised to pay a commission to a cooperating broker. “In a
unilateral contract, there is only one promisor, who is under an enforceable legal duty.
(1 Corbin on Contracts (1993) § 1.23, p. 87.)” (Asmus v. Pacific Bell (2000) 23 Cal.4th
1, 10.) The factual recitations of the third amended complaint alleged that after sellers
and Bolin executed the Listing Agreement, “[t]he property was thereafter listed in the
MLS by Defendant, BOLIN on or about January 8, 2008 for the asking price of
$9,495,000.00 with 2 ½ % to be paid by ‘Sellers’ to any licensed real estate agent who
was a member of the MLS and who procured a buyer for the property.” (Italics added.)
The cause of action for breach of contract, which incorporates this allegation,
inconsistently alleges that the MLS listing was a unilateral offer made by each of the
defendants.
We conclude that the terms of the listing itself do not establish a unilateral offer by
Bolin, as opposed to sellers, to pay a 2.5 percent commission to cooperating brokers.
Tardif failed to allege a contract theory against Bolin and we affirm the court’s rulings on
that basis as to that theory only.
Bolin also argues that the exclusive remedy for resolving disputes between brokers
concerning a MLS listing is arbitration under the rules of the MLS, which are quoted
extensively in the fourth amended complaint. Bolin did not invoke the right to arbitrate
any claim brought against her by Tardif in her demurrer to the second amended
complaint. She does not demonstrate that she unsuccessfully sought arbitration of those
claims. The right to arbitrate was waived. (See Lewis v. Fletcher Jones Motor Cars, Inc.
(2012) 205 Cal.App.4th 436, 448–449 [piecemeal litigation of issues, including
demurrers, through pretrial procedures justifies finding of waiver].)
16
We find no error in the trial court’s ruling sustaining the demurrers to Tardif’s
cause of action for breach of contract as to Bolin.
IV
The fourth amended complaint alleged a cause of action for intentional
interference with prospective economic advantage. Tardif alleged that several days after
the Willises rejected the sellers’ counteroffer, Bolin contacted them without informing
Tardif. She alleged that Bolin told the Willises that the sellers were very motivated to
sell the Cherokee property and that they should meet to discuss the sale. Tardif alleged
that Bolin told the Willises not to contact her, and that Bolin and the sellers would “‘take
care’ of [Tardif] by paying her for bringing them to the property, if they agreed to
purchase the Cherokee Lane property for $9 million.” The Willises agreed, and the sale
was consummated for that amount. Bolin received her 1 percent commission of $90,000
and Tardif was paid nothing. Tardif alleged that the defendants intentionally concealed
the sale from her by designating the property as withdrawn from the MLS rather than as
sold. She alleged that the defendants acted with the knowledge and intent to deprive her
of her 2½ percent commission. As a result, she alleged she did not discover the sale had
been made to the Willises through the Island Shores entity until she received an e-mail
from the Willises on or about August 20, 2009. These allegations are supported by
footnotes quoting portions of the MLS Rules and Regulations.
Defendants argue this cause of action is barred by the two-year limitations period
of Code of Civil Procedure section 339, subdivision (1). (Augusta v. United Service
Automobile Assn. (1993) 13 Cal.App.4th 4, 10; see also Knoell v. Petrovich (1999)
76 Cal.App.4th 164, 168.) Tardif contends that sellers raise this issue for the first time on
appeal. That is incorrect. The bar of the statute of limitations was a ground for their
demurrer to the fourth amended complaint. In the fourth amended complaint, Tardif
alleged that she learned of the basis for the intentional interference claim on August 20,
2009. The fourth amended complaint was filed October 24, 2011.
17
In her reply brief, Tardif argues that the claim is not barred because it arises from
the same facts and circumstances alleged in the original complaint, which was filed
November 17, 2009. The original complaint alleged a cause of action for interference
with prospective economic advantage. The sellers answered this complaint. But it was
superseded by a first amended complaint, filed with leave of the trial court, which
included a cause of action for intentional interference. The sellers demurred. The trial
court sustained the demurrer to the cause of action in the first amended complaint on the
ground that Tardif had not adequately pled various elements of the tort. It granted 20
days leave to amend. Tardif did not allege a cause of action for intentional interference
in the second amended complaint. But after the trial court sustained defendants’
demurrers to all causes of action alleged in the third amended complaint, it granted
Tardif’s request for leave to amend to allege a cause of action for interference with
prospective economic advantage.
We conclude that the allegation of the fourth amended complaint relates back to
the original complaint which was filed in 2009, and was timely. “‘[T]he relation-back
doctrine deems a later-filed pleading to have been filed at the time of an earlier complaint
which met the applicable limitations period, thus avoiding the bar. In order for the
relation-back doctrine to apply, “the amended complaint must (1) rest on the same
general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality,
as the original one.”’ [Citation.]” (Bjorndal v. Superior Court (2012) 211 Cal.App.4th
1100, 1113.) The interference cause of action of the fourth amended complaint rests on
the same set of facts regarding the listing and sale of the Cherokee property, is based on
the same injury (loss of the 2½ percent commission), and refers to the same documents
alleged in the original complaint. In addition, although Tardif failed to include the
interference cause of action in her second amended complaint after having been given
leave to amend it, the trial court acted within its discretion in concluding that a possible
cause of action could be alleged in the fourth amended complaint. We turn to the merits
of the pleading.
18
The elements of a cause of action for intentional interference with prospective
economic advantage are “‘“(1) an economic relationship between the plaintiff and some
third party, with the probability of future economic benefit to the plaintiff; (2) the
defendant’s knowledge of the relationship; (3) intentional acts on the part of the
defendant designed to disrupt the relationship; (4) actual disruption of the relationship;
and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.”
[Citations.]’ [Citation.]” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th
1134, 1153.) In addition, the plaintiff must “plead intentional wrongful acts on the part of
the defendant designed to disrupt the relationship.” (Id. at p. 1154.) “[A]n act is
independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional,
statutory, regulatory, common law, or other determinable legal standard. [Citations.]”
(Id. at p. 1159, fn. omitted.)
Tardif alleged that Section 8.1 of the MLS Rules and Regulations requires the
listing broker to obtain authorization from the sellers to comply with various provisions
of the MLS rules before submitting a listing to the MLS. These include: “c). abide by
the rules of the MLS; d). provide timely notice of status changes of the listing to the
MLS; e). provide sales information, including selling price, to the MLS upon sale of the
property for publication and dissemination to those authorized by the MLS; and
f). publish sales information after the final closing of a sales transaction in accordance
with these MLS Rules.” She further alleged that the actions of the defendants in
removing the Cherokee property from the MLS with a “‘Withdrawn’ designation rather
than a ‘Sold’ designation, concurrently with close of escrow was a violation of MLS
Rules and Regulations Section 10.2, which states: “‘Listings with accepted offers shall
be reported to the MLS or input into the MLS database as ‘pending’ or ‘back-up’ within
2 business days of the acceptance . . . Upon final closing, the listing broker shall report
or input the listing in the MLS as ‘sold’ within 2 business days of the final closing . . . .’”
She alleged that listing the property as sold within the required time frame would have
alerted her to the fact the property had actually sold. She alleged that this violation of the
19
MLS rules was “intentionally designed to deny Plaintiff her 2½ percent commission on
the sale of the Cherokee Lane Property.”
Under the rules governing review of a ruling on a demurrer, we accept these
allegations regarding the rules of the MLS as true. Tardif has adequately alleged the
elements of the interference cause of action, including that defendants’ conduct was
independently wrongful because it was proscribed by the quoted rules and regulations of
the MLS.
DISPOSITION
The judgment of dismissal is reversed as to Tardif’s causes of action for breach of
contract on a third party beneficiary theory as to sellers. The judgment of dismissal is
affirmed as to the contract theory against Bolin. We reverse the judgment of dismissal on
the cause of action for intentional interference with prospective economic advantage as to
sellers and Bolin. Tardif is to have her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.
20