Hussein v. Driver CA1/4 ( 2014 )

Filed 1/24/14 Hussein v. Driver CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
EREN HUSSEIN,
Plaintiff and Appellant,
A134745
v.
DAVID DRIVER et al., (San Francisco City & County
Super. Ct. No. CGC-08-483062)
Defendants and Respondents.
I.
INTRODUCTION
This lawsuit stems from ongoing disputes between owners in a condominium
project located at 1570-1574 Waller Street in San Francisco (condominium project),
particularly with regard to the ownership of a parking space in the garage of the building.
Appellant Eren Hussein, the former owner of Unit 401, appeals after summary judgment
was entered in favor of respondents, the current and former owners of Unit 301.1
Appellant contends the trial court erred in granting judgment for respondents because
triable issues of material fact existed on his allegations for slander of title, interference
1
As for respondents’ identities, at all times relevant to this litigation, respondents
David Driver and Emelia Rallapalli resided in Unit 301, which is the unit situated directly
below appellant’s unit. Respondent Driver became an owner of Unit 301 in 2008, and
also became a director of the condominium project homeowner’s association (HOA).
Respondents Krishna and Philippine Rallapalli, who are the parents of Emelia Rallapalli,
are the former owners of Unit 301.
1
with contract, and negligent and intentional interference with prospective economic
advantage. We affirm the judgment.
II.
FACTS AND PROCEDURAL HISTORY
The condominium project is a three-unit complex that includes three parking
spaces. At the center of this controversy is the disputed issue of the ownership of one of
these parking spaces and how this dispute affected the marketability of one of the units in
the busy Cole Valley neighborhood.2 On November 19, 1982, Richard Crofton-Sleigh
and Michele P. Crofton-Sleigh (collectively “Declarants”), who at that time owned the
entire building, recorded an “Enabling Declaration Establishing a Plan for Condominium
Ownership” (“Declaration”) dividing the property into three separate units. Declarants
also recorded an accompanying parcel map (“Map”) that identified three separate
condominium units as: (a) Unit 201 (located on the second floor); (b) Unit 301 (located
on the third floor); and (c) Unit 401 (located on the fourth floor) and a garage on the
ground floor. The Map identifies three parking spaces in the garage, namely parking
spaces P-1, P-2, and P-3 and indicates these are “parking areas, easement for the
exclusive use of said areas shall be granted as appurtenances of particular units.”
The Declaration defines a “Common Area” as “all lands and improvements not
within any Unit” and grants each Unit, as appurtenant to its property, undivided interest
in the Common Areas. Such undivided interest “cannot be altered without the consent of
all the Unit Owners affected . . . .” The Declaration further defines “Restricted Common
Areas” as areas “set aside and allocated for the exclusive use of the Owners of the Units”
2
Although it played a prominent role below, nowhere in appellant’s opening brief
is there any discussion or analysis of the evidence submitted by appellant below
concerning “many tens of thousands of dollars of common building costs and expenses”
he claimed were “wrongfully” imposed by the HOA “for the pecuniary gain of the
Owners of [Unit] 301.” Because issues with regard to these assessments are not before
this court, we do not address them in this opinion. (Kim v. Sumitomo Bank (1993) 17
Cal.App.4th 974, 979 [court is not required to discuss or consider points which are not
argued on appeal].)
2
and that “[s]uch easements shall be appurtenant to the respective Units as granted by
Declarant in the deed to the purchasers of the respective Units.”
The deed for the original transfer of Unit 301 included an exclusive easement to
use the parking area designated as P-2 on the map. The deed for the original transfer of
Unit 201 included an exclusive easement to use the parking area designated as P-3 on the
map. When appellant purchased Unit 401 in June 22, 2005, the deed to his Unit 401, and
the deeds previously recorded, differed from the deeds to Unit 201 and Unit 301 because
it did not include an easement for exclusive use of P-1, one of the three parking spaces.
On or about October 18, 2006, Meredith Martin, a real estate agent with Paragon
Real Estate Group (“Paragon”) listed Unit 401, owned by appellant, for sale. Martin
received an email from Chicago Title Company stating that no parking space had been
deeded to Unit 401 and that this omission in the deed could be corrected if the owners of
Unit 201 and Unit 301 deeded parking space P-1 to appellant. Martin requested that the
owners of Unit 301 and Unit 201 sign a “draft deed that would correct the omitted
parking exclusive easement for this property [Unit 401].” Martin sent a draft deed which
proposed to grant appellant “[a]n exclusive easement, appurtenant to and for the benefit
of unit #401 to use the Parking area(s) designated as P-1 on the Map.” The owners of
Unit 201 agreed to execute the necessary documents, and they have never claimed any
ownership interest in parking space P-1.
However, a resident of Unit 301, respondent Driver (who is an attorney)
researched the deed history on all the units and summarized his findings in two emails
responding to the request of appellant’s real estate broker. Driver explained respondents’
position that parking space P-1 was not an exclusive easement owned by appellant, but
instead was legally part of the common area owned by the HOA, and therefore was
available for use by any of the other owners. He also claimed appellant was not entitled
to sell rights to parking space P-1 to any purchaser of Unit 401. It is undisputed that after
the problem with appellant’s title came to light, respondent Driver occasionally parked
his vehicle in parking space P-1.
3
Appellant took steps to rectify the omission in the deed. He requested that the
Association vote to enact a “policy” that assigned each parking space to an individual
unit. Appellant also recorded a new deed from the original Declarant that attempted to
retroactively grant appellant an exclusive easement to use parking space P-1.
Nevertheless, appellant was unsuccessful in getting respondents to back away from their
position that parking space P-1 was not owned by appellant, but instead was part of the
common area owned by the HOA, and available for use by all the owners.
Appellant eventually sold Unit 401 to Gary E. Grote and Janice P. Grote (the
Grotes) in early to mid-December 2008. However, appellant believed that the ongoing
dispute with respondents, especially with regard to whether or not a prospective
purchaser would have exclusive use of a parking space, discouraged prospective buyers
and resulted in the value of the condominium being diminished.
Appellant and the Grotes filed this action in December 2008, alleging seven
causes of action against respondents and the HOA. On May 28, 2009, appellant and the
Grotes filed their second amended complaint, the operable complaint for purposes of
summary judgment. On November 20, 2009, the seventh cause of action for quiet title to
parking space P-1 was voluntarily dismissed and the HOA was dismissed as a party after
the dispute over the parking space was settled.3
Thereafter, on April 7, 2011, respondents filed their motion for summary judgment
and/or summary adjudication “to resolve the following causes of action, that are
[primarily] based . . . on the same basic dispute alleged in the quiet title cause of action
but that were not otherwise resolved in the settlement and remain at issue.” These cause
of action included: (1) appellant’s and the Grotes’ cause of action for slander of title;
(2) appellant’s cause of action for intentional interference with contractual relations; and
(3) appellant’s causes of action for intentional and negligent interference with prospective
economic advantage.
3
The terms of the settlement are confidential and do not appear as a matter of
record in this appeal.
4
On March 9, 2012, the trial court entered judgment against appellant after granting
respondents’ motion for summary judgment. The court’s grant of summary judgment
disposed of all viable claims against appellant. The only cause of action in the second
amended complaint that remains viable is the cause of action for trespass bought by the
Grotes against respondents. Respondents’ cross-complaint against the Grotes for
nuisance, indemnity, and contribution also remains. At the Grotes’ request, the court
stayed any further action on this case pending resolution of this appeal. Appellant timely
appealed from the judgment entered in respondents’ favor.4
III.
DISCUSSION
A. Standard of Review
The general standard of review of an order granting a motion for summary
judgment is well settled and was recently stated by this court in Brisbane Lodging, L.P. v.
Webcor Builders, Inc. (2013) 216 Cal.App.4th 1249. “We review a trial court’s grant of
summary judgment de novo. [Citation.] ‘In performing our de novo review, we must
view the evidence in a light favorable to [the] plaintiff as the losing party [citation],
liberally construing [its] evidentiary submission while strictly scrutinizing [the]
defendant[’s] own showing, and resolving any evidentiary doubts or ambiguities in [the]
plaintiff’s favor. [Citations.]’ Summary judgment is proper ‘if all the papers submitted
show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. . . .’ [Citations.]” (Id. at p. 1256.)
4
Although appellant describes the Grotes as additional appellants on the slander
of title cause of action, the notice of appeal names only Eren Hussein as an appellant, and
there has been no request to amend the notice of appeal to add the Grotes. (Compare
Beltram v. Appellate Department (1977) 66 Cal.App.3d 711, 714.) Mistakes in
designating parties will not be fatal, especially where respondents are not prejudiced or
misled; however, this court has not been asked to remedy this omission. (Id. at pp. 715-
716.)
5
B. Slander of Title
The trial court found appellant did not show any probability of prevailing on the
merits of his claim for slander of title. The court’s written order states appellant failed to
meet his burden of creating a “triable issue of fact that the individual [respondents]
published a false and unprivileged disparagement of [appellant’s] title to Unit 401.” We
agree with the trial court that the opinions expressed by respondents in connection with
the parties’ dispute with regard to the ownership of parking space P-1, which were not
resolved until the settlement of appellant’s quiet title cause of action, do not constitute
false statements of fact necessary to support a claim of slander of title.
“The gravamen of an action for ‘disparagement of title,’ also known as ‘slander of
title,’ . . . occurs when a person, without a privilege to do so, publishes a false statement
that disparages title to property and causes pecuniary loss. [Citation].” (Truck Ins.
Exchange v. Bennett (1997) 53 Cal.App.4th 75, 84.) Our Supreme Court has held “[i]f
the matter is reasonably understood to cast doubt upon the existence or extent of
another’s interest in land, it is disparaging to the latter’s title where it is so understood by
the recipient. [Citation.]” (Gudger v. Manton (1943) 21 Cal.2d 537, 542-543 (Gudger),
disapproved on another point in Albertson v. Raboff (1956) 46 Cal.2d 375, 381; Hill v.
Allan (1968) 259 Cal.App.2d 470, 489 (Hill).) The elements of the tort are: (1) a
publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss.
(Ibid.; Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011) 200
Cal.App.4th 656, 664; Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC
(2012) 205 Cal.App.4th 999, 1030.)
The critical issue is whether appellant raised a triable issue of fact with respect to
the third element—that respondents’ statements with respect to the ownership of parking
space P-1 were false. California has adopted the definition of slander of title set forth in
the Restatement Second of Torts (Restatement). (See Howard v. Schaniel (1980) 113
Cal.App.3d 256, 262-263 (Howard).) The Restatement “describes the tort of slander of
title as a subspecie of the more general tort of publication of an injurious falsehood.”
(Appel v. Burman (1984) 159 Cal.App.3d 1209, 1214 (Appel).) The Restatement defines
6
injurious falsehood as follows: “ ‘One who publishes a false statement harmful to the
interests of another is subject to liability for pecuniary loss resulting to the other if (a) he
intends for publication of the statement to result in harm to interests of the other having a
pecuniary value, or either recognizes or should recognize that it is likely to do so, and
(b) he knows that the statement is false or acts in reckless disregard of its truth or
falsity.’. . .” (Ibid., quoting Rest. 2d Torts § 623A, p. 334.)
Consequently, appellant’s burden of proof is “ ‘the same test as that for scienter in
the tort of deceit,’ ” requiring that respondents “ ‘know that the statement is false or acts
in reckless disregard of its truth or falsity.’ ” (5 Miller & Starr, Cal. Real Estate (3d ed.
2011) § 11:47, p. 11-159, citing Rest.2d Torts, §623A.) Proof of this element is required
to prevail on a slander of title claim. (See Rosenaur v. Scherer (2001) 88 Cal.App.4th
260, 275 [publisher of disparaging statement only liable if “ ‘he knows that the statement
is false or acts in reckless disregard of its truth or falsity’ ”]; Melaleuca, Inc. v. Clark
(1998) 66 Cal.App.4th 1344, 1360-1361 [explaining that, unlike liability for statements
that impugn personal reputation, liability for statements that damage property interests
only arises if the publisher “ ‘knows that the statement is false or acts in reckless
disregard of its truth or falsity’ ”].)
Appellant claims respondents made statements with respect to the ownership of
parking space P-1 that were false, or that they acted in reckless disregard of whether these
statements were true. In support of this argument, appellant relies on evidence showing
respondents stated: (1) Unit 401 had no right to the exclusive use of parking space P-1;
(2) Unit 401 had no right to convey such an interest; (3) respondents and all the other
condominium owners had the right to share in the use of parking space P-1; (4) the HOA
held title to parking space P-1 and could sell it; and (5) the owners of Unit 401 had no
legal right to parking space P-1.
However, there is no evidence respondents knew that their statements were false,
nor was there evidence from which a jury could find a reckless disregard of the truth or
falsity of respondents’ assertions. As found by the court, respondents “did not base their
opinion upon false facts.” Rather, appellant does not meaningfully contest the following
7
undisputed facts which supports respondents’ opinion regarding title to parking space P-
1:
● The original Declaration defines the “Restricted Common Areas” as “[p]ortions
of the Common Area, if any, set aside and allocated for the exclusive use of a Unit
Owner or Owners . . . .” The “Restricted Common Areas” are specifically defined to
include “the exclusive easement to use . . . parking areas (P-1 through P-3) . . . .” The
Declaration goes on to state “Such easements shall be appurtenant to the respective Units
as granted by Declarant in the deed to the purchasers of the respective Units.” (Italics
added.)
● The Parcel Map indicates that P-1 through P-3 are “parking areas, easement for
the exclusive use of said areas shall be granted as appurtenances of particular units.”
(Italics added.)
● The deeds to Units 201 and 301 specifically conveyed exclusive easements to
parking spaces P-2 and P-3 respectively.
● The deed to Unit 401 did not include an exclusive easement to any parking
space.
● The original Declaration defines the “Common Area” as “all lands and
improvements not within any Unit.” The Declaration defines the “Common Interest” as
“the proportionate undivided interest in the Common Area which is appurtenant to each
Unit . . . .”
● Under the Declaration “the common interest appurtenant to each Unit is
declared to be permanent in character and cannot be altered without the consent of all
the Unit Owners affected . . . .” (Italics added.)
Based on this documentary evidence, respondents had sufficient undisputed facts
to support their position that (1) because an exclusive easement to parking space P-1 was
not granted to any particular unit, it became part of the Common Area owned by all the
unit owners; (2) the title for the easement to parking space P-1 was held by the HOA as
the unit owners’ representative; and (3) the consent of all the unit owners would be
required to grant an exclusive easement for parking space P-1 to any particular unit.
8
In attempting to point out respondents’ flawed reasoning, appellant advances a
contrary interpretation of the documentary evidence to assert ownership of parking space
P-1, along with the ability to convey it to bona fide purchasers for value, notwithstanding
the fact that it is not mentioned in his deed. Such analysis and interpretation of the
documentary evidence only confirms that the ownership of parking space P-1 was not
clear and reasonable persons could disagree as to the validity of each party’s position. If
competing interpretations are reasonable, and the matter has not been conclusively
resolved, the record cannot support appellant’s view that respondents “recklessly and
intentionally disregarded the truth” in asserting their claims. Underscoring that
respondents had a plausible basis for their interpretation, appellant’s own real estate
agent informed appellant that the title company had concluded that no parking space had
been deeded to his unit; and unless the other unit owner’s agreed to execute the necessary
documents, his power to convey title to space P-1 was questionable.
Until the matter was conclusively resolved through settlement of the quiet title
cause of action, the results of which have been kept confidential, the ownership of
parking space P-1 was uncertain. As a practical matter, one cannot slander a disputable
title that has not been formally adjudicated. (See 57 Cal.Jur.3d (2010) Slander of Title,
§ 13, pp. 833-834 [“[a] prerequisite to the right to maintain a slander of title action is that
the plaintiff must have had an ownership interest in the property involved as of the time
of the alleged slander”]; Howard, supra, 113 Cal.App.3d at p. 265 [“[a] condition
precedent to committing [slander of title] was a judicial proceeding establishing of record
the title by adverse possession”]; Hill, supra, 259 Cal.App.2d at p. 491 [finding defendant
was entitled to assert an inconsistent legal interest in himself because the right to the
easement “was not definitely and legally determined until the conclusion of the instant
action”]; compare, Phillips v. Glazer (1949) 94 Cal.App.2d 673, 677-678 [neighbor liable
for slander of title after he persisted in claiming ownership of disputed strip of land after
issue had been resolved against him in quiet title action].)
In conclusion, there is no evidence that respondents falsely claimed some legal
interest in parking space P-1, or that respondents’ claims were made in reckless disregard
9
of the truth. Until marketable title was established through settlement of the quiet title
action, respondents, like appellant, were entitled to press their arguments and assert their
ownership interests in parking space P-1 without fear of becoming liable for slander of
title. The fact that they did so opportunistically—using it as leverage in their ongoing
disputes with appellant and attempt to disrupt appellant’s sale of the condominium to the
Grotes—does not change the undisputed facts demonstrating that the title to P-1 was
genuinely debatable. Consequently, the trial court correctly entered summary judgment
on their slander of title claim.
C. Interference with Existing Contract
The trial court also found appellant did not show any probability of prevailing on
the merits of his claim for interference with contract. The factual basis for this cause of
action involves appellant’s effort to sell Unit 401 to Katharina Rock. By way of
background, after living in Unit 401 became “intolerable” for appellant because of the
hostility with respondents, he moved out in July 2007, and rented Unit 401 to Rock. She
lived in Unit 401 and parked her car in parking space P-1 for about a year without
incident. During the summer of 2008, appellant contacted Rock and told her he had
decided to sell Unit 401. She expressed a desire to buy it, and they verbally agreed on a
$849,000 sales price. However, before the parties entered into a written agreement, Rock
backed out of the sale once she learned of ongoing disputes and spoke with respondents
about the parking issue, as well as other matters.
Appellant concedes, “[w]hile Ms. Rock and I did not have a written agreement, we
had a verbal agreement.” Citing the enforceability problem created by the statute of
frauds, the court found that “[a]s a matter of law [appellant] cannot prevail on this cause
of action because the undisputed facts demonstrate that the Alleged Rock Contract was
never a valid and enforceable agreement.”
A claim for tortious interference with contractual relations requires proof that:
(1) a valid contract existed between the plaintiff and another party; (2) the defendant was
a third party who had knowledge of the contract and intended to induce a breach of the
contract; (3) the contract was breached; (4) the breach was a proximate result of the
10
defendant’s wrongful or unjustified conduct; and (5) the plaintiff suffered resulting
damage. (Abrams & Fox, Inc. v. Briney (1974) 39 Cal.App.3d 604, 608.) The breach-
inducing conduct must be intentional, and must either have been unlawful conduct or
conduct otherwise lawful but lacking sufficient justification for the interference. (Id. at
p. 607.)
The first element of a cause of action for intentional interference with contract is
the underlying contract be enforceable because “[w]here there is no existing, enforceable
contract, only a claim for interference with prospective advantage may be pleaded.”
(PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 601, original italics
(PMC), disapproved on other grounds by Korea Supply Co. v. Lockheed Martin Corp.
(2003) 29 Cal.4th 1134, 1159, fn. 11 (Korea Supply).) PMC reasoned “[i]t is logical to
force the plaintiff to plead and prove an enforceable contract when stating a cause of
action for intentional interference with contract. If a party is not obligated to perform a
contract and may refuse to do so at his election without penalty, then the other party to
that agreement enjoys nothing more than an expectancy. A stranger intentionally
interfering with that relationship quite obviously does not disturb an enforceable contract
but only a prospective economic relationship.” (PMC, supra, at pp. 599-600, original
italics.) Consequently, “[w]here there is no existing enforceable contract, only a claim
for interference with prospective advantage may be pleaded. To [conclude] otherwise
unnecessarily confuses the two torts and fails to recognize their inherent differences.”
(Id. at p. 601, original italics; accord, A-Mark Coin Co. v. General Mills, Inc. (1983) 148
Cal.App.3d 312, 322 (A-Mark) [unenforceable contract cannot serve as the basis for
intentional interference with contract claim].)
As a further example of this foundational requirement, the court in Bed, Bath &
Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52
Cal.App.4th 867 (Bed, Bath & Beyond) concluded a plaintiff could not maintain a cause
of action against a third party for intentional interference with a contractual relationship
when the underlying contract was unenforceable under the statute of frauds. (Id. at
pp. 877-880.)
11
Ignoring the weight of this authority, appellant claims that because respondents
“were not parties to the contract and could neither enforce it nor contest its
enforceability,” they “do not have standing to assert the statute of frauds” in order to
“immunize their tortuous conduct.” However, this argument is unsupported by any
applicable authorities, and ignores the many cases establishing a third party’s
interference with a void or voidable contract cannot form the basis of a cause of action
for intentional interference with contractual relations. (See, e.g., Della Pena v. Toyota
Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392, italics added [“[t]he courts provide
a damage remedy against third party conduct intended to disrupt an existing contract”];
PMC, supra, 45 Cal.App.4th at pp. 599-600, italics added [“A stranger intentionally
interfering with that relationship quite obviously does not disturb an enforceable contract
but only a prospective economic relationship”]; Bed, Bath & Beyond, supra, 52
Cal.App.4th at p. 878, italics added [addressing the question “whether a third party’s
interference with a voidable or unenforceable contract can form the basis of a cause of
action for intentional interference with contractual relations”].)
Appellant’s reliance upon Zimmerman v. Bank of America (1961) 191 Cal.App.2d
55 (Zimmerman) is equally misguided. Appellant cites Zimmerman in support of the
proposition that the tort of interference with contract does not require an underlying
enforceable contract. However, later decisions have made clear that Zimmerman was
decided at a time when the two interference torts were improperly blurred together, and
its holding only remains applicable to the tort of interference with prospective advantage.
(Bed, Bath & Beyond, supra, 52 Cal.App.4th at p. 880, fn. 9 [cases such as Zimmerman
“did not draw a clear distinction between tort liability for interference with a contract and
tort liability for interference with prospective economic advantage,” as it was decided “at
a time when that distinction was still blurred in California case law”]; LiMandri v.
Judkins (1997) 52 Cal.App.4th 326, 339-340 [noting that Zimmerman improperly blurred
the line between the two interference torts].)
There is no question that appellant’s cause of action for interference with contract
required him to plead and prove the existence of an underlying enforceable contract. It
12
goes without saying that a contract for the sale of real property that is not in writing is
unenforceable. (Civ. Code, § 1624, subd. (a)(3).) The absence of this element is fatal to
appellant’s claim against respondents for intentional interference with contractual
relations.
D. Interference with Prospective Economic Advantage
In finding appellant failed to raise a triable issue of fact with respect to his causes
of action for intentional and negligent interference with prospective economic advantage,
the trial court found appellant “cannot demonstrate any wrongful conduct” on
respondents’ part.5
The elements for a claim of 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 [or negligent] 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, supra, 29 Cal.4th at p. 1153; Westside Center Associates v.
Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521-522.)
A cause of action for intentional interference with prospective economic relations
cannot survive without proof of some wrongful conduct by the defendant. (National
Medical, supra, 62 Cal.App.4th at p. 440.) To be “wrongful” in this context, the conduct
must be something more than permissible action that happens to interfere with the
plaintiff’s prospective economic relations. More specifically, the conduct must be
5
For simplicity, this opinion refers to appellant’s claims for both intentional and
negligent interference with prospective economic advantage as “interference with
prospective economic advantage.” The difference between the two torts is not relevant to
this appeal. The crucial issue at hand is the requirement that the plaintiff plead some
“independently wrongful” conduct on the part of the defendant; whether pleaded as
intentional interference or negligent interference, this requirement applies. (See National
Medical Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 440
(National Medical).)
13
“ ‘illegal or unfair or immoral according to the common understanding of society’ ”
(Willard v. Caterpillar, Inc. (1995) 40 Cal App.4th 892, 920), or it must violate “well-
defined, established rules or standards of a trade, association or profession” (Stevenson
Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138
Cal.App.4th 1215, 1223), or it must be “proscribed by some constitutional, statutory,
regulatory, common law, or other determinable legal standard. [Citations.]” (Korea
Supply, supra, 29 Cal.4th at p. 1159, fn. omitted.)
For example, in Korea Supply, supra, 29 Cal.4th at page 1159, it was alleged that
the defendant had engaged in bribery and offered sexual favors to key Korean officials in
order to obtain a contract from the Republic of Korea. These illegal practices clearly
satisfied the independent wrongfulness requirement.
In support of his cause of action for interference with prospective economic
advantage here, appellant alleges that respondents “wrongfully assert[ed]” that Unit 401
“did not include any exclusive parking easement.” These allegations merely restate the
allegations in support of appellant’s slander of title claim. However, we have concluded
this cause of action fails as a matter of law, so it cannot serve to fulfill the wrongful
conduct requirement in order to maintain appellant’s interference claims as well.
Additionally, appellant claims respondent Driver interfered with prospective
economic relations in or about November 2008 when appellant’s real estate agent and
lenders were trying to work out a short sale with the Grotes after appellant defaulted on
his mortgage payments. The purchase price of Unit 401 was $604,000. Before the short
sale closed, respondent Driver wrote letters to appellant’s lenders indicating there existed
a dispute regarding whether appellant could establish a legal right to exclusive use of a
parking space, as well as other disputed issues. The letter claimed appellant had “grossly
undervalued his unit, no matter if that unit has parking or not.” Respondent Driver
claimed the sales price was detrimentally affecting the value of his unit and the building
as a whole. Respondent Driver eventually offered to purchase the unit himself, indicating
“I can offer the lender a fair price and a quick sale for this unit. A private sale with me
will help the lender by saving on real estate commissions, saving on time needed to sell
14
the property through the Multiple Listing Service (MLS), and saving on fees and
expenses while the property is owned directly by the lender.”
Appellant claims these letters provide evidence of wrongful conduct. However,
without the essential slander of title finding, these general allegations are insufficient to
show wrongful interference with a prospective economic advantage. As explained in
Korea Supply, supra, 29 Cal.4th at pages 1158-1159, the tort of “interference with
prospective economic advantage is not intended to punish individuals or commercial
entities for their choice of commercial relationships or their pursuit of commercial
objectives, unless their interference amounts to independently actionable conduct.
[Citation.]” While respondent Driver’s attempt to disrupt the sale of Unit 401 to the
Grotes and purchase the condominium for himself may be legitimately criticized as
opportunistic, it cannot satisfy the independently wrongful conduct requirement.
As explained in PMC, supra, 45 Cal.App.4th at page 603, “ ‘[u]nder the privilege
of free competition, a competitor is free to divert business to himself as long as he uses
fair and reasonable means.’ . . . ‘[T]he competition privilege is defeated only where the
defendant engages in unlawful or illegitimate means.’ [Citation.]” (Fn. omitted; see,
e.g., A-Mark, supra, 148 Cal.App.3d at pp. 323-324 [competitor’s conduct could not give
rise to liability for interference with prospective economic advantage because there was
nothing to suggest “that [the defendants’] motives were other than to advance their own
economic interests”].)
While appellant makes generalized allegations that respondent Driver’s behavior
violated professional ethics as an attorney and breached his fiduciary duties as an officer
of the HOA, these general allegations are insufficient to show wrongful acts of
interference with a prospective economic advantage. Further guidance on this point is
provided by Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95
Cal.App.4th 1249, in which the plaintiff sought to establish the wrongfulness of the
defendant’s conduct by opinion testimony to the effect that the defendant’s conduct was
unethical, not customary in the pertinent industry, and really bad business. (Id. at
pp. 1257-1258.) The Court of Appeal rejected “the nebulous ‘industry standards’ test
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advanced by Gemini,” on the grounds that “[t]he imposition of liability for interference
based merely on opinions that the solicitation of a competitor’s business was ‘unethical’
or violated ‘industry standards’ would create uncertainty and would chill, not maximize,
competition.” (Id. at p. 1259.)
E. Trial Court’s Evidentiary Rulings
In ruling on respondents’ evidentiary objections, the trial court sustained their
written objections in their entirety. The evidence which was excluded included: excerpts
from appellant’s declaration supporting his belief he had title to parking space P-1; the
opinions of the Unit 201 owners regarding the title to parking space P-1; and an affidavit
from one of the original developers of the condominium project as to the meaning and
intent of the original documents. In so ruling, appellant claims the court “potentially
ignored 48 pieces of evidence that could have created triable issues and defeated
summary judgment.”
Initially, we reject appellant’s argument that the trial court committed prejudicial
error when it failed to state, in writing or orally, the specific legal ground or grounds it
relied upon in sustaining respondents’ evidentiary objections. The trial court’s written
order stated which objections were sustained and that statement fulfilled any obligation
imposed on the trial court. (See suggested format for ruling on evidentiary objections in
California Rules of Court, rule 3.1354(b).)
In proceeding to review the court’s evidentiary rulings on their merits, we note
there is some uncertainty associated with the standard of review applicable to a trial
court’s rulings on evidentiary objections related to a motion for summary judgment. In
Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, the court noted that the proper
standard of review for rulings on evidentiary objections based on papers alone was not
settled. (Id. at p. 255, fn. 4.) Recently, the California Supreme Court stated that “we
need not decide generally whether a trial court’s rulings on evidentiary objections based
on papers alone in summary judgment proceedings are reviewed for abuse of discretion
or reviewed de novo.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.)
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Regardless of the appropriate standard of review of the trial court’s evidentiary
rulings, appellant is required to show that any error or abuse of discretion by the trial
court in its evidentiary rulings is prejudicial. (Carnes v. Superior Court (2005) 126
Cal.App.4th 688, 694 (Carnes) [Cal. Const., art. VI, § 13 requires anyone seeking
reversal of a judgment to show error was prejudicial].)
Appellant neglects to establish he was prejudiced by the trial court’s evidentiary
rulings, i.e., he fails to provide any argument or analysis demonstrating how the excluded
evidence created a triable issue of material fact such that summary judgment was not
warranted. “The burden is on the appellant in every case to show that the claimed error is
prejudicial; i.e., that it has resulted in a miscarriage of justice. [Citation.]” (Cucinella v.
Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; Paterno v. State of California (1999) 74
Cal.App.4th 68, 106.)
Except for the bald, conclusory statement that the stricken evidence did establish
material issue of fact precluding summary judgment, appellant has made no attempt to
explain on appeal how any of the evidence excluded by the trial court would have raised
a triable issue of material fact on the key issues in this summary judgment motion.
(County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945 [“ ‘appellant
bears the duty of spelling out in his brief exactly how the error caused a miscarriage of
justice’ ”].) For this reason alone, we are entitled to reject appellant’s claim that the trial
court erred in excluding the challenged evidence. (Carnes, supra, 126 Cal.App.4th at
p. 694 [“Plaintiff has failed to show she was prejudiced by the trial court’s adoption of
evidentiary rulings proposed by defendant’s attorneys”].)
IV.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
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_________________________
RUVOLO, P. J.
We concur:
_________________________
RIVERA, J.
_________________________
HUMES, J.
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